Appellate Seminar by TCDLA

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APPELLATE Raising the Bar

Texas Criminal Defense Lawyers Association

Appellate Austin Table of Contents

-Speaker

Topic February 3, 2022

Ted Wood Judge David Newell

Hidden Gems Not to Miss A View from the Court of Criminal Appeals

Mark Stevens

Where is the Law Heading?

Mandy Miller

Ethical Duty to Your Appellate Clients

Wayne Schiess Nicole DeBorde Hochglaube Maggie Kiely HCPDO Appellate Lawyers

Elevating Your Writing Making your Record – Motions for New Trial Better Research Tools and Techniques Brief Mooting

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

APPELLATE SEMINAR – RAISING THE BAR SEMINAR INFORMATION Date Location Course Director Total CLE Hours

February 4, 2022 Austin, Texas l TBD Jani Maselli Wood 6.75

Ethics: 1.0

Friday, February 4, 2022 Time

CLE

Daily CLE Hours: 6.75 Ethics: 1.0

Topic

Speaker

7:45 am

Registration and Continental Breakfast

8:00 am

Opening Remarks

Jani Maselli Wood

8:15 am

.75

Hidden Gems Not to Miss

Ted Wood

9:00 am

1.0

A View from the Court of Criminal Appeals

Judge David Newell

Break

10:00 am 10:15 am

1.0

11:15 am 11:30 am

Where is the Law Heading?

Mark Stevens

Lunch Line 1.0 Ethics

Lunch Presentation: Ethical Duty to Your Appellate Clients

Mandy Miller

Break

12:30 pm 12:45 pm

.75

Elevating Your Writing

Wayne Schiess

1:30 pm

.75

Making your Record – Motions for New Trial

Nicole DeBorde Hochglaube

2:15 pm

Break

2:30 pm

Better Research Tools and Techniques

3:00 pm

1.0

Brief Mooting

Maggie Kiely HCPDO Appellate

4:00 pm

Lawyers

Adjourn

TCDLA :: 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Mental Health

February 3, 2022 Holiday Inn Austin Midtown 6000 Middle Fiskville Rd. Austin, TX 78752

Topic: Hidden Gems Not to Miss Speaker:

Ted Wood

1201 Franklin St. Rm 13 (713) 274-6705 Phone (512) 463-1648 Fax ted.wood@pdo.hctx.net

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Four Systemic Arguments (that may work outside of Houston) Ted Wood Assistant Public Defender Harris County Public Defender’s Office ted.wood@pdo.hctx.net (713) 274-6705 February 4, 2021

TABLE OF CONTENTS COVER PAGE ..................................................................................................................... 1 TABLE OF CONTENTS ................................................................................................... 2 INTRODUCTION............................................................................................................... 5 SYSTEMIC ARGUMENT ONE – The Visiting Judge Statute is Unconstitutional ..................................................... 7 I. Judicial Power ............................................................................................................. 7 II. Generally, only the elected district judge can exercise a district court’s judicial power ...................................................................................... 9 III. The Legislature has provided for someone other than the elected district judge to preside over a district court. But the statute is overly broad. ..................................... 10 IV. The framing of the issue .......................................................................................... 11 V. The issue has been advanced three times .................................................................... 12 VI. The Smith opinion ................................................................................................. 12 VII. Analysis of the Smith opinion ............................................................................... 14 VIII. Neither the First Court of Appeals nor the Court of Criminal Appeals considered the foregoing arguments... ..................................................................... 19 IX. The Wiggins opinion. ............................................................................................. 20 X. The Lazarine opinion ............................................................................................. 21 XI. Why there may be hope in other intermediate courts of appeals.................................. 21 SYSTEMIC ARGUMENT TWO – Jury Trials cannot be Waived.............................. 23 I. The key provision of the Texas Constitution – Article I, Section 10. .......................... 23 II. The argument on appeal........................................................................................... 23 III. The Farris opinion................................................................................................. 24 2

IV. The Lemus opinion... ............................................................................................. 32 V. The Pacas opinion ................................................................................................... 34 SYSTEMIC ARGUMENT THREE – Court A has no Jurisdiction if Indictment is presented by Court B’s Grand Jury ...................................................... 40 I. Challenging a systemic practice in Harris County........................................................ 40 II. Articles 19 and 20 of the Texas Code of Criminal Procedure. .................................. 42 III. Criminal law commentators have understood that a grand jury is to return an indictment to the court that impaneled the grand jury ........................................... 45 IV. Case law................................................................................................................ 46 A. Lytle v. Halff – Texas Supreme Court (1889) ........................................ 46 B. Brady v. State – Texas Court of Criminal Appeals (1931). ................... 49 C. Mosley v. State – Texas Court of Criminal Appeals (1962)................... 50 V. Gutierrez was the seventh case advancing the current argument in the First Court of Appeals ............................................................................................ 51 VI. The Court of Appeals’ reasoning in Gutierrez ......................................................... 52 SYSTEMIC ARGUMENT FOUR – Most Statutory County Courts have no Criminal Jurisdiction .................................... 53 I. Fundamentals regarding county-level courts ................................................................. 53 II. The Conundrum in Harris County .......................................................................... 58 III. Overview of Dailing v. State ................................................................................... 59 IV. Dailing’s constitutional argument ............................................................................ 59 V. Dailing’s statutory-construction argument .................................................................. 67 A. The statutes are in pari materia and can be harmonized ...................... 68

B. General jurisdictional grants must yield to exclusive jurisdictional grants ................................................................................. 71 VI. The Dailing opinion ........................................................................................... 74 VII. Creative arguments in other counties ...................................................................... 81 VIII. State v. Tiscareno ............................................................................................... 82 CONCLUSION .................................................................................................................. 84

INTRODUCTION In the criminal-law context, a systemic argument focuses on defects in the justice system itself. An argument is systemic if it focuses on a flaw that exists in a large number of cases. In other words, a systemic argument is not based on the facts in a particular case. A systemic argument can be applied in a very large universe of cases. To be sure, a systemic argument is made in the course of one case. But a systemic argument, if successful, will have consequences that go beyond that one particular set of circumstances. A great many other cases will be affected. As its name suggests, a systemic argument has the potential to disrupt “the system.” For this reason, appellate courts tend to disfavor systemic arguments. What may be a successful argument if the consequences were limited to a single case may be unsuccessful if the consequences are broad. Courts are often reticent to disturb the status quo. This paper will explore four systemic arguments that have been advanced in both the First and Fourteenth Courts of Appeals. Each of these systemic arguments has been spurned by these two courts. And the Court of Criminal Appeals has declined to grant petitions for discretionary review in any of the appeals. What this means is that there is not yet any statewide law foreclosing these systemic arguments. It is still possible for these arguments to succeed in the other twelve intermediate courts of appeals. This is especially the case if these other appellate 5

courts independently analyze the systemic arguments and do not simply follow their sister courts.

SYSTEMIC ARGUMENT ONE The Visiting-Judge Statute is Unconstitutional I. Judicial Power Article V, Section 1 of the Texas Constitution describes judicial power in Texas: JUDICIAL POWER VESTED IN COURTS; LEGISLATIVE POWER REGARDING COURTS. The judicial power of this State shall be vested in one Supreme Court, in one Court of Criminal Appeals, in Courts of Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justices of the Peace, and in such other courts as may be provided by law. The Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other inferior courts thereto. The Texas Supreme Court defined the term “judicial power” back in 1933 in the case of Morrow v. Corbin: ‘Judicial power’ is the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for a decision.1 Different courts possess different portions of this judicial power. The particular portion of the judicial power possessed by a certain type of court is known as the court’s subject-matter jurisdiction. This was also explained in Morrow v. Corbin: ‘Jurisdiction’ of a particular court is that portion of the judicial power which it has been authorized to exercise by the Constitution or by valid statutes.2

1 2

Morrow v. Corbin, 62 S.W.2d 641, 644 (Tex. 1933). Id. 7

Article V, Section 8 of the Texas Constitution describes the subject-matter jurisdiction of the district courts: JURISDICTION OF DISTRICT COURTS. District Court jurisdiction consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or administrative body. District Court judges shall have the power to issue writs necessary to enforce their jurisdiction. The District Court shall have appellate jurisdiction and general supervisory control over the County Commissioners Court, with such exceptions and under such regulation as may be prescribed by law. When it comes to felonies, original jurisdiction has generally not been conferred by the Constitution or by statute on any other court.3 Thus, district courts exercise subject-matter jurisdiction over felony cases. Indeed, it may be said that district courts exercise that portion of the judicial power covering felony cases. So when it comes to someone charged with committing a felony, typically only a district court has subjectmatter jurisdiction over the person’s case. In other words, only a district court may

There are numerous exceptions. For example, in Panola County, the county court at law has been given concurrent jurisdiction with the district court over felony cases. Tex. Gov’t Code § 25.1852(a). The same goes for Anderson County, Tex. Gov’t Code § 25.0042(a)(1)(c), and Bee County. Tex. Gov’t Code § 250152(a)(2). In Denton County, the county courts at law have been given concurrent jurisdiction with the district courts over certain felony-intoxication offenses. Tex. Gov’t Code § 25.0634. In Bosque County, the county courts at law have been given limited jurisdiction in felony cases. Tex. Gov’t Code § 25.0202(a)(3). The Brown County Court at Law has been given concurrent jurisdiction with the district courts in felony cases. Tex. Gov’t Code § 25.0272(a)(2). The Cass County Court at Law has limited jurisdiction in felony cases. Tex. Gov’t Code § 25.0362(a)(2), (3). The same goes for Chambers County. Tex. Gov’t Code § 25.0382(a)(1). This is just the tip of the iceberg. There are many more exceptions that could be listed. 3

exercise judicial power over the person’s case. This means that usually only a district court may “decide and pronounce a judgment” in the person’s case.4 II. Generally, only the elected district judge can exercise a district court’s judicial power. We now reach the question of who can act for a district court. In other words, who can “decide and pronounce a judgment” for a district court? The answer to this question is spelled out in Article V, Section 7 of our Constitution which is reproduced in its entirety below: JUDICIAL DISTRICTS; DISTRICT JUDGES; TERMS OR SESSIONS; ABSENCE, DISABILITY, OR DISQUALIFICATIONS OF DISTRICT JUDGE. The State shall be divided into judicial districts, with each district having one or more Judges as may be provided by law or by this Constitution. Each district judge shall be elected by the qualified voters at a General Election and shall be a citizen of the United States and of this State, who is licensed to practice law in this State and has been a practicing lawyer or a Judge of a Court in this State, or both combined, for four (4) years next preceding his election, who has resided in the district in which he was elected for two (2) years next preceding his election, and who shall reside in his district during his term of office and hold his office for the period of four (4) years, and who shall receive for his services an annual salary to be fixed by the Legislature. The Court shall conduct its proceedings at the county seat of the county in which the case is pending, except as otherwise provided by law. He shall hold the regular terms of his court at the County Seat of each County in his district in such manner as may be prescribed by law. The Legislature shall have power by General or Special Laws to make such provisions concerning the terms or sessions of each court as it may deem necessary.

See Morrow v. Corbin, 62 S.W.2d at 644. 9

The Legislature shall also provide for the holding of District Court when the Judge thereof is absent, or is from any cause disabled or disqualified from presiding. As the foregoing provision explains, the elected district judge is the person who can act for a district court. This is the general rule. The last sentence contains an exception. The exception is that the Legislature can provide for the holding of district court when the elected judge is absent, disabled, or disqualified from presiding. III. The Legislature has provided for someone other than the elected district judge to preside over a district court. But the statute is overly broad. As envisioned by our Constitution, the Legislature has passed a statute authorizing someone other than the elected district judge to exercise a district court’s power. That statute is Section 74.056 of the Texas Government Code. The apposite portion of Section 74.056 is Subsection (a) which reads as follows: A presiding judge from time to time shall assign the judges of the administrative region to hold special or regular terms of court in any county of the administrative region to try cases and dispose of accumulated business. There is no doubt that Section 74.056(a) allows for the appointment of a visiting judge when the elected district judge is absent, disabled, or disqualified. But there is a problem with the statute. It is overly broad. The statute does not limit the appointment of visiting judges to the circumstances spelled out in Article V, Section 7. Instead, the statute permits the appointment of a visiting judge “to try cases and dispose of 10

accumulated business.” There is absolutely no requirement that the elected district judge be absent, disabled, or disqualified.

For this reason, Section 74.056(a) is

unconstitutional.5 Because Section 74.056(a) operates unconstitutionally, the appointment of the visiting judge is invalid. All actions of the visiting judge are done without authority. In other words, the visiting judge’s actions in handling a case and signing off on a conviction are ultra vires. Accordingly, the conviction cannot stand. IV. The framing of the issue. The issue arising from this argument has been framed as follows: The Constitution directs district judges to exercise district courts’ judicial power. The Constitution authorizes the Legislature to allow others to exercise that power when the district judge is absent, disabled, or disqualified. A Texas statute permits assigned visiting judges to act for district judges in handling a district court’s accumulated business. Does the statute operate unconstitutionally if a visiting judge acts for a district court and the district judge is not absent, disabled, or disqualified?

The statute is not unconstitutional on its face. This is because, the statute authorizes the appointment of a visiting judge when the elected district judge actually is absent, disabled, or disqualified. But the statute is “unconstitutional as applied” in situations in which the district judge is not absent, disabled, or disqualified. In Harris County, visiting judges are routinely appointed without regard for whether the district judge is absent, disabled, or disqualified. The typical Harris-County appointment is “for the primary purpose of hearing cases and disposing of any accumulated business requested by the court.” Generally, the appointment orders do not say anything regarding the availability of the elected district judge. The appointment of visiting judges to handle cases is just a routine part of the justice system in Harris County. 5

V. The issue has been advanced three times. This issue has been advanced in three separate appeals. The three appeals are as follows: (1) Keith Smith v. State, No. 01-19-00422-CR; (2) Nathaniel Wiggins v. State, No. 14-20-00076-CR; and (3) Raymond v. Lazarine v. State, No. 01-19-00982-CR. The issue was first rejected in the Smith case. 6 Later, the issue was scorned in the Wiggins case.7 And finally, the issue was rebuffed in Lazarine.8 VI. The Smith Opinion The First Court of Appeals was the first appellate court to consider this argument. In a unanimous opinion, the Court found the argument “to be without merit.” But there is certainly room for a bit of disagreement with that finding. The Court said: Smith's argument assumes that Article V, section 7 requires any statute enacted by the Texas Legislature, authorizing the assignment of judges to district courts, to include a requirement that the elected district court judge be absent, disabled, or disqualified in order for the assignment to be made. An analysis of Article V, section 7 shows that the provision does not contain that requirement.

See Smith v. State, No. 01-19-00442-CR, 2020 WL 6731656 (Tex. App.—Houston [1st Dist.] Nov. 17, 2020, pet. ref’d) (mem. op., not designated for publication). 7 See Wiggins v. State, 622 S.W.3d 556 (Tex. App.—Houston [14th Dist.] 2021, pet. ref’d). 8 See Lazarine v. State, No. 01-19-00982-CR, 2021 WL 5702182 (Tex. App.—Houston [14th Dist.] Dec.2, 2021, no pet. h.) (mem. op., not designated for publication). 6

*** Article V, section 7 states, in pertinent part: “The Legislature shall also provide for the holding of District Court when the Judge thereof is absent, or is from any cause disabled or disqualified from presiding.” Tex. Const. art. V, § 7. The plain and literal meaning of the text directs the legislature to enact legislation that provides a means for court to be held when the elected district court judge is absent, disabled, or disqualified. See id. . . . . The interpretive commentary to Article V, section 7 explains the purpose of the constitutional provision: So that absence, disability or disqualification of the judge during the session of the court will not operate to adjourn the court or prevent the holding of the court, the constitution authorizes the legislature to provide for the holding of district court when the judge is absent, or is for any cause disabled or disqualified from presiding. Tex. Const. art. V, § 7 (interpretative commentary). Both the plain language of the constitutional provision's text and its apparent purpose indicate that the provision was intended to ensure that when a district judge is absent, disabled, or disqualified, court can be held without significant delay or interruption. Nothing in the provision's text, or otherwise, indicates that the legislature lacks authority to enact legislation permitting eligible and qualified judges to be assigned to district courts even when the elected judge of the district court is not absent, disabled, or disqualified. See Dean v. Dean, 214 S.W. 505, 507 (Tex. Civ. App.—1919, no writ) (rejecting appellant's argument that portion of now-repealed statute allowing for election of “special judge” to sit for “regular” district court judge when regular judge is “unwilling to hold court,” violated Article V, section 7 because being “unwilling to hold court” is not among the specified circumstances listed in section 7 and stating, “We do not think that, because the Constitution makes it the duty of the Legislature to provide for supplying the place of the regular judge in certain specified events, it is therefore deprived of the power to so provide in other events”); see also Piersen v. State, 177 S.W.2d 975, 977 (Tex. Crim. App. 1944) (“The Legislature has the power to pass any and all such laws as to it may seem proper, save and except where limited or prohibited 13

from so doing by the Constitution of this State or by the Constitution of the United States.”). Thus, we hold that Smith has not met his burden to show that Government Code section 74.056(a) is unconstitutional as applied in this case. We overrule Smith's first issue.9 VII. Analysis of the Smith Opinion The Smith opinion is problematic. The underlined language above acknowledges exactly what the text of Article V, Section 7 intends. It “intend[s] to ensure that when a district judge is absent, disabled, or disqualified, court can be held without significant delay or interruption.” 10 But the Court then says this does not mean the Legislature cannot provide for the appointment of visiting judges in other circumstances. The Court does cite an older case for this proposition. The Smith Court rests its theory on the back of a 100-year-old case from the Austin Court of Appeals – Dean v. Dean.11 This is not mandatory authority and there is considerable precedent undercutting Dean. In Hill County v. Sheppard, the Texas Supreme Court said:

Smith v. State at *5-*6 (emphasis added). See id. 11 The State did not cite Dean. In fact, the State did not take issue with Mr. Smith’s constitutional argument. Rather, the State argued that the record did not show the elected district judge was not absent- disabled, or disqualified. See State’s Appellate Brief in the Smith case at 8 (“The appellant failed to produce a record showing the elected judge was not absent, disabled, or disqualified. So even if those were the only situations where a visiting judge could preside over a trial, the appellant could not overcome the presumption of regularity. This Court should reject his argument without addressing the constitutional claim.”). 9

Where certain duties are imposed or specific powers are conferred upon a designated officer, the Legislature cannot withdraw them . . . nor confer them upon others nor abridge them or interfere with the officer's right to exercise them unless the Constitution expressly so provides. 12 A district court, of course, is one of these governing institutions. The Constitution provides for the election of district judges who are to preside over the district courts. Any exceptions to this arrangement need to be stated in the Constitution. Section 7 does contain an exception. But it has limits. Only when the elected district judge is absent, disabled, or disqualified may someone besides the elected judge conduct court proceedings. Following this principle, the Sheppard Court held the Legislature could not create an office with authority to take over the duties of the county attorney. 13 A similar case from the Texas Supreme Court is State v. Moore. 14 In Moore, the Court said: It must be presumed that the constitution, in selecting the depositaries of a given power, unless it be otherwise expressed, intended that the depositary should exercise an exclusive power, with which the legislature could not interfere by appointing some other officer to the exercise of the power. . . . That the constitution might empower the legislature to withdraw power from the hands in which the constitution placed it, and to confer the same upon an [sic] another officer or tribunal, cannot be questioned; but to enable the legislature to do so, the power must be given in express terms, and it cannot be implied. 15

Hill County v. Sheppard, 178 S.W.2d 261, 264 (Tex. 1944) (emphasis added, ellipsis in original). Id. 14 State v. Moore, 57 Tex. 307 (1882). 15 Id. at 314-15 (emphasis and ellipsis added). 12 13

Our Court of Criminal Appeals has made similar statements. In Meshell v. State, the Court relied on Moore and said: Therefore, under the separation of powers doctrine, the Legislature may not remove or abridge a district or county attorney's exclusive prosecutorial function, unless authorized by an express constitutional provision. 16 Another relevant case from the Court of Criminal Appeals is State v. Williams.17 In Williams, the Court recognized a significant holding in its previous opinion styled Armadillo Bail Bonds v. State.18 That holding was that the Constitution “expressly grants the Legislature ultimate authority over judicial ‘administration.” 19

However, the

Williams Court explained the Legislature’s power to regulate the administration of the courts does not permit encroachment on substantive judicial powers.20 As explained in Armadillo Bail Bonds21 and reiterated in Williams, 22 substantive judicial powers include the power to: (1) hear evidence; (2) decide issues of fact raised by the pleadings; (3) decide relevant questions of law; (4) enter a final judgment on the facts and the law; and (5) execute the final judgment or sentence. The issue in Williams was whether a law directing the priority of various litigants on a court's docket was properly characterized

Meshell v. State, 739 S.W.2d 246, 254-55 (Tex. Crim. App. 1987) State v. Williams, 938 S.W.2d 456 (Tex. Crim. App. 1997). 18 Armadillo Bail Bonds v. State, 802 S.W.2d 237 (Tex. Crim. App. 1990). 19 Id. at 240. 20 State v. Williams, 938 S.W.2d at 459. 21 Armadillo Bail Bonds v. State, 802 S.W.2d at 239-40. 22 State v. Williams, 938 S.W.2d at 458-59. 16 17

as judicial administration.23 The Court said yes and held the law to be constitutional.24 Thus, the law did not encroach on substantive judicial powers such as the five powers set out above. Obviously, if the law had encroached upon substantive judicial powers (such as entering a judgment of conviction), the law would have been unconstitutional. There is also United States Supreme Court precedent that cuts against the Smith Court’s reasoning. One informative case is United States Term Limits, Inc. v. Thornton.25 At issue in Thornton was an amendment to the Arkansas Constitution that essentially placed term limits on members of Congress. The amendment was challenged on grounds that it violated the Qualifications Clauses of the United States Constitution. The first of the two Qualifications Clause is Article I, Section 2, Clause 2: No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen. The second Qualifications Clause is Article I, Section Clause 3: No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

Id. Id. at 459. 25 United States Term Limits, Inc. v. Thornton, 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995). 23 24

The Supreme Court agreed that the amendment to the Arkansas Constitution contravened the United States Constitution. Writing for the Court, Justice John Paul Stevens first recapped the Court’s opinion some 25 years earlier in Powell v. McCormack.26 Justice Stevens announced the Court was “reaffirm[ing]” the Powell Court’s holding. 27 That holding was that the qualifications for service in Congress set forth in the Qualifications Clauses are “fixed.”28 Congress was not at liberty to supplement those qualifications. 29 The Supreme Court went on to hold that individual states could not supplement those qualifications either: Petitioners argue that the Constitution contains no express prohibition against state-added qualifications, and that Amendment 73 [the Arkansas constitutional amendment] is therefore an appropriate exercise of a State's reserved power to place additional restrictions on the choices that its own voters may make. We disagree for two independent reasons. First, we conclude that the power to add qualifications is not within the “original powers” of the States, and thus is not reserved to the States by the Tenth Amendment. Second, even if States possessed some original power in this area, we conclude that the Framers intended the Constitution to be the exclusive source of qualifications for Members of Congress, and that the Framers thereby “divested” States of any power to add qualifications.30

See Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). United States Term Limits, Inc. v. Thornton, 514 U.S. at 798. 28 Id. 29 Id. 30 Id. at 800-01. 26 27

Why is Thornton discussed here? It is to show the Supreme Court’s thinking regarding constitutional provisions detailing qualifications for senators and representatives. The Constitution is the “exclusive source” of these qualifications. The Qualifications Clauses do not explicitly say that Congress (or a particular state) may not establish additional qualifications. But the Supreme Court recognized that the framers intended the Qualifications Clauses to contain the only qualifications for members of Congress. Thus, neither Congress nor the states could add other qualifications. What if this reasoning is applied to the argument here that Section 74.056(a) is unconstitutional? One would likely conclude our Constitution’s framers intended Article V, Section 7 to detail the only actors who could conduct district court district court proceedings. As a general rule, that actor is the elected district judge. An exception exists in that the Legislature is directed to provide for holding district court when the elected judge is absent, disabled, or disqualified. A substitute judge is envisioned in those circumstances. Thornton’s take on a legislature’s power to supplement constitutional provisions establishing government powers clashes with the view espoused in Dean. VIII. Neither the First Court of Appeals nor the Court of Criminal Appeals considered the foregoing arguments. All of the foregoing authorities were cited to the First Court of Appeals in the Smith case in a motion for rehearing. But the Court simply denied the motion for

rehearing. A motion for en banc reconsideration was also denied. A petition for discretionary review was filed with the Court of Criminal Appeals. The petition was refused. So the arguments undercutting the Smith holding have never been specifically addressed. Perhaps other intermediate courts of appeals will be willing to consider these legal authorities. This assumes these courts of appeals will not simply cite Smith and its reasoning as precedent that should be followed. This is what happened in the Wiggins opinion out of the Fourteenth Court of Appeals. IX. The Wiggins Opinion In Wiggins, the Fourteenth Court of Appeals said: We agree with the First Court of Appeals on this issue. Appellant posits that the constitution “absolutely prohibits the assignment of visiting judges when the elected district judge is not absent, disabled, or disqualified,” but neither the relevant language nor its interpretative commentary supports his assertion. Article V, section 7 ensures that the absence, disability, or disqualification of a judge will not operate to adjourn court or prevent the holding of court; but it does not limit the Legislature's ability to enact legislation permitting eligible and qualified judges to be assigned to district courts in other circumstances. 31 Once one intermediate court of appeals rules against a systemic argument, other appellate courts have a convenient authority on which to defeat the same argument. This is what happened in Wiggins. As in Smith, both a motion for rehearing and a motion

Wiggins v. State, 622 S.W.3d at 560. The Wiggins Court cited the Smith case as well as Dean v. Dean for its conclusion.

for en banc reconsideration were filed.

And as in Smith, both motions were

unanimously rejected without comment. Also, another petition for discretionary review was filed with the Court of Criminal Appeals. Again, the Court of Criminal Appeals refused the petition. X. The Lazarine Opinion Much like the reasoning employed by the Wiggins Court, the Lazarine Court’s rationale for finding Section 74.056(a) constitutional was a straight reliance on Smith. There was no independent reasoning. In Lazarine, the First Court of Appeals said: Lazarine argues Article V, Section 7 “creates an absolute prohibition on the assignment of visiting judges outside of situations in which the elected district judge is absent, disabled, or disqualified.” He thus contends that as applied to him, Government Code Section 74.056(a) violates Article V, Section 7 because it permitted Judge Hill [the visiting judge] to preside over his trial, even though nothing in the record suggested Judge Abigail Anastasio, the elected judge of the 184th District Court, was absent, disabled, or disqualified at the time of his trial. This Court recently rejected this same argument under very similar circumstances in Smith v. State.32 XI. Why there may be hope in other intermediate courts of appeals The original briefs in Smith, Wiggins, and Laarine were filed at roughly the same time. None of the authorities that undercut Dean v. Dean were cited in the original briefs. And, as mentioned earlier,33 the State did not cite the Dean opinion in its

32 33

Lazarine v. State, 2021 WL 5702182 at *3-*4. See supra Footnote 11. 21

briefing. 34 No party knew about the Dean opinion until the Smith Court mentioned it in its opinion. So neither the First Court nor the Fourteenth Court were forced to deal with authorities running counter to Dean. Intermediate appellate courts can simply choose not to address arguments made on rehearing and that is exactly what happened here. And, of course, the Court of Criminal Appeals has total discretion in choosing the cases it wishes to hear. If this argument is advanced in any of the other intermediate courts of appeals, the Dean case should be attacked as inconsistent with controlling precedent. That controlling precedent should be argued strenuously. Courts of appeals hearing this argument for the first time should have to confront the weakness of the Dean case. And when they do, the result could well be different.

See State’s Appellate Brief at 8 in Smith v. State; State’s Appellate Brief at 8-9 in Wiggins v. State; and State’s Appellate Brief at 10 in Lazarine v. State. 34

SYSTEMIC ARGUMENT TWO Jury Trials Cannot be Waived I. The key provision of the Texas Constitution – Article I, Section 10 The first sentence of Article I, Section 10 of the Texas Constitution contains these 16 words: In all criminal prosecutions, the accused shall have a speedy public trial by an impartial jury. The foregoing language is very similar to the language of the Sixth Amendment to the United States Constitution. In pertinent part, the federal provision says: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . . The big difference in the two provisions is that the federal provision speaks of the “right” to a jury trial. The Texas provision, on the other hand, is an absolute mandate – “the accused . . . shall have a speedy public trial.” The Texas provision does not speak of a “right.” There is nothing in the text of Article I, Section 10 indicating the jury-trial requirement can be waived. II. The argument on appeal In three separate appeals, the Harris County Public Defender’s Office has argued that Article I, Section 10 prohibits defendants from waiving a jury trial. The three appeals are: 23

(1) Charles Farris v. State, No. 01-1800863-CR; (2) Isael Lemus v. State, No. 14-18-00905 through No. 14-00911-CR; and; (3) Roberto Pacas v. State, No. 01-18-01016-CR through No. 01-18-01018-CR. Each of the appeals involved a defendant who had pled guilty. The argument on appeal was simply and accurately described by the First Court of Appeals in Farris: In his sole issue, appellant contends that the trial court erred in accepting his guilty plea because “the Texas Constitution requires a jury trial in all criminal prosecutions.” 35 The Farris Court rejected this argument in a 2-to-1 decision that was published in August of 2019. Justice Countiss wrote the majority opinion and was joined by Chief Justice Radack. Justice Gordon Goodman wrote the dissenting opinion.36 III. The Farris Opinion The First Court of Appeals made the following observation about Mr. Farris’s argument: appellant relies solely on the language contained in Article I, section 10 to assert that he could not have waived “the absolute requirement of a jury trial in all criminal prosecutions” provided for by the Texas Constitution. 37

Farris v. State, 581 S.W.3d 920, 921-22 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d) (emphasis in original). 36 Farris v. State, 581 S.W.3d 920, 925 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d) (Goodman, J., dissenting). 37 Farris v. State, 581 S.W.3d at 922 (emphasis added). 35

It’s unclear why relying on the language of the Constitution makes for a weak argument. Such language would seem to be the most solid of all legal authority. In any event, the Court of Appeals didn’t find such authority, on its own, to carry the day. The Court advanced three reasons for rejecting Mr. Farris’s argument. First, the Court of Appeals cited five cases from the Court of Criminal Appeals for a rather remarkable proposition. That proposition is that there is no difference between the language of Article I, Section 10 and the Sixth Amendment. But as demonstrated above, this is clearly not the case. The first of the five cited cases is Jacobs v. State. 38 The Court of Appeals said this about Jacobs: “there is no significant textual difference between” Article I, section 10 of the Texas Constitution and the Sixth Amendment to the United States Constitution that “indicate[s] that different standards of protection should be applied” to criminal defendants under either constitution.39 But the Jacobs case had nothing to do with whether Article I, Section 10 absolutely mandates a jury trial in criminal cases. Rather, the opinion considered whether the impartial-jury requirements in the two constitutions are different.40

Jacobs v. State, 560 S.W.3d 205 (Tex. Crim App. 2018). Farris v. State, 581 S.W.3d at 922-23 (emphasis and brackets in the original). 40 Jacobs v. State, 560 S.W.3d at 210. 38

The second of the five cited cases is Jones v. State.41 Like Jacobs, the issue in Jones was the scope of the impartial-jury requirement. It was not whether Article I, Section 10 mandates jury trial in all criminal cases: As we have said previously, there is no significant textual difference between the two constitutional provisions which would indicate that different standards of protection should be applied, and we can conceive of no reason why the impartial-jury requirements in the two constitutions should be different.42 The third of the five cited cases is Judge Yeary’s dissenting opinion in Niles v. State.43 Judge Yeary had simply repeated the Court’s language in Jacobs and Jones.44 There was no consideration of whether Article I, Section 10 requires jury trials in all criminal cases.45 The fourth of the five cited cases is Uranga v. State.46 This case had to do with something known as the “implied bias” doctrine. In the course of analyzing this doctrine, the Court of Criminal Appeals said: The Sixth Amendment to the United States Constitution guarantees the right to a trial by an impartial jury in all criminal prosecutions. Article I, Section 10 of the Texas Constitution similarly guarantees that “[i]n all criminal prosecutions the accused shall have a speedy public trial by an impartial jury.” This Court has held that the right in the state constitution is no greater than that recognized in the Sixth Amendment. Neither the Jones v. State, 982 S.W.2d 386 (Tex. Crim. App. 1998). Id. at 391. 43 Niles v. State, 585 S.W.3d 562 (Tex. Crim. App. 2018) (Yeary, J., dissenting). 44 Id. at 577 n. 12 (“We have said before that there is no difference in scope between the Sixth Amendment’s right to a jury trial and that of Article I, Section 10, of the Texas Constitution.”). 45 See id. 46 Uranga v. State, 330 S.W.3d 301 (Tex. Crim. App. 2011). 41 42

federal nor the state constitution has been held to require an “implied bias” doctrine. 47 As in Jacobs, Jones, and Niles, the Uranga Court was not considering whether Article I, Section 10 mandates jury trials in all criminal cases. The fifth of the five cited cases is Marquez v. State.48 The case has nothing to do with the argument that Article I, Section 10 mandates jury trials in all criminal cases. The question in Marquez concerned the impartial-jury requirement and the fair crosssection requirement: Appellant has submitted no case which suggests that the impartial jury and fair cross-section requirements embodied in the two constitutions are different. And, indeed, we can conceive of no reason why they should be so. We are not without authority in holding that the two constitutional provisions provide comparable protection.49 As can be seen, none of these five cases involved the argument that Article I, Section 10 mandates jury trials in all criminal cases. The five cases do not in any way foreclose the argument under discussion here. The second reason advanced by the Court of Appeals for rejecting the current argument is also of questionable strength. The Court cited Delrio v. State – an opinion

Id. at 304. Marquez v. State, 725 S.W.2d 217 (Tex. Crim. App. 1987). 49 Id. at 243. 47 48

by the Court of Criminal Appeals that actually does address Article I, Section 10’s “mandatory language.” 50 Citing McMillan v. State, 51 the Delrio Court said: Since 1931 we have not held, however, despite mandatory language in the provision, that an impartial jury is an inflexible constitutional imperative which cannot be procedurally defaulted or consciously waived. Rather, we have recognized it to be a right of the accused, which must be pressed in some fashion at trial before reversal of his conviction may be predicated upon its breach. 52 As one can see, the Delrio Court candidly recognized that Article I, Section 10 contains “mandatory language.” Nevertheless, the Delrio Court felt compelled to follow McMillan – a 1933 case declining to find that Article I, Section 10 created a constitutional imperative. Delrio did not explain why McMillan was correct. Instead, the Court followed McMillan with no regard for whether the opinion was (or was not) well-reasoned. And a look at McMillan reveals there to have been no independent analysis of Article I, Section 10 in that case either. In fact, McMillan does not even mention Article I, Section 10. So to defeat the argument that Article I, Section 10 mandates a jury trial in every criminal prosecution, the Farris opinion relies on Delrio. And the Delrio opinion relies on McMillan. And the McMillan opinion does not even mention Article I, Section 10.

See Farris v. State, 581 S.W.3d at 923 (citing Delrio v. State, 840 S.W.2d 443 (Tex. Crim. App. 1992)). See McMillan v. State, 57 S.W.2d 125 (Tex. Crim. App. 1933). 52 Delrio v. State, 840 S.W.2d at 446. 50 51

The third reason advanced by the Court of Appeals for rejecting the argument made by Mr. Farris is also based on an old case. That old case is Dabney v. State – another 1933 case from the Court of Criminal Appeals.53 As the Farris Court recognized, Dabney “addressed [Mr. Farris’s] exact argument on appeal.”54 The Dabney Court did indeed address the argument. But the Dabney Court’s resolution of the argument was based not on the law, but rather on the argument’s negative consequences. The Dabney opinion said: The opinion in this case was predicated on McMillan v. State (Tex. Cr. App.) 57 S.W.(2d) 125. Appellant urges that the conclusion reached in the latter case was wrong, in that the court failed to take note of section 10, art. 1, of the State Constitution, which reads, in part: “In all criminal prosecutions, the accused shall have a speedy public trial by an impartial jury.” Appellant admits that section 15 of article 1 of the Constitution 55 makes a jury trial a “right” which might be waived if it were not for section 10 of said article, which appellant urges is an absolute requirement of trial by jury in all criminal prosecutions. If appellant is right, then all legislative acts permitting a waiver of jury in misdemeanor cases are void, as being in conflict with the constitutional provision of section 10. We are not in accord with appellant's position. Sections 10 and 15 must be considered together as was done in Moore v. State, 22 Tex. App. 117, 2 S. W. 634. The conclusion there reached is not in accord with appellant's contention. We regard the opinion in that case as direct authority supporting our conclusion in McMillan v. State, supra. 56

See Dabney v. State, 60 S.W.2d 451 (Tex. Crim. App. 1933). See Farris v. State, 581 S.W.3d at 923-24. The argument, as accurately capsulized by the Farris Court, is that “Article I, section 10 creates ‘an absolute requirement of trial by jury in all criminal prosecutions.’” 55 In pertinent part, Article I, Section 15 of the Texas Constitution says: The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency. 56 Dabney v. State, 60 S.W.2d at 451 (emphasis added). 53

The underlined portion of the foregoing quotation is revealing. The Dabney Court acknowledged that accepting the appellant’s argument would cause a huge upset to the system. All statutes permitting jury waivers would be void. Thus, an untold number of convictions would be void. Of course, this is not a proper basis for an appellate-court ruling. The question of whether a constitutional provision’s explicit language must be respected does not depend on whether doing so would invalidate particular legislation. In his dissenting opinion in Farris, Justice Goodman recognized that accepting Mr. Farris’s argument “would be a major disruption to the Texas criminal justice system.”57 But, he essentially said, this should not matter when it comes to deciding appeals: Some will argue that an acknowledgment by the Court of Criminal Appeals of the mandate contained in article I, section 10 of the Texas Constitution requiring jury trials in all prosecutions for Old Code felony crimes would be a major disruption to the Texas criminal justice system and would place Texas in a unique position among the other state in the Union—I agree on both counts. Texas is large, and Texas has never shied away from taking actions that distinguish it from other states. The fact that this striking, mandatory requirement stems from the earliest constitution of the Republic of Texas only emphasizes the importance that Texans place on the mandate for and the right to jury trials. 58

Farris v. State, 581 S.W.3d at 929 (Goodman, J., dissenting). Id. at 929-30. 30

The Dabney Court did have a bit more to say after pointing out that accepting the appellant’s argument would invalidate numerous legislative acts. As set out above, Dabney went on to say “[w]e are not in accord with appellant’s opinion.”59 But the Dabney Court expressed no independent reasoning for its non-accord. Rather, the Court simply said “Sections 10 and 15 must be considered together as was done in Moore v. State.”60 So as in Delrio and McMillan, the Court of Criminal Appeals sidestepped any direct analysis of Article I, Section 10 in Dabney. Instead, the Court relied on yet another previous opinion – Moore. But Moore is short on legal analysis too. Indeed, the Moore Court did quote Article I, Section 10’s unique language. But the Court ignored that language in deciding the case. The Court spoke only of the “right to trial by jury” (as set out in Article I, Section 15) in its analysis, saying: It would appear to be the better view that the sense in which such expressions as “the right to trial by jury shall remain,” etc., or similar language are used, is that the right of a defendant to such a mode of trial shall not be withheld from him against his consent, not that a jury trial is in any sense a necessity.61 The Moore Court’s conclusion “is fine insofar as Article I, Section 15 of our Constitution is concerned.” But a consideration of the unique language of Article I, Section 10 – guaranteeing defendants a jury trial in all criminal prosecutions – was Dabney v. State, 60 S.W.2d at 451. Id. (citing Moore v. State, 2 S.W. 634 (Tex. Ct. App. 1886). 61 Moore v. State, 2 S.W. at 636. 59 60

entirely missing. Accordingly, Moore does not stand for any proposition whatsoever in regard to Article I, Section 10. Dissenting Justice Goodman noted that Moore did not directly address Article I, Section 10: Neither the Texas Legislature nor the Court of Criminal Appeals has directly confronted section 10’s clear and absolute mandate. Instead, Texas courts have interpreted article I, section 15—the general right to trial by jury applicable to both criminal and civil proceedings—in a way that ignores section 10’s distinct guarantee. That interpretation, which the majority believes requires it to reject Farris’s appeal, is not faithful to its plain language, its historical purpose, or its meaning in the context of the Constitution as a whole.62 So the Farris case relies on Delrio which relies on Dabney which relies on Moore. But Moore does not consider Article I, Section 10 (other than to acknowledge that the constitutional provision exists). And Moore does not even come from the Court of Criminal Appeals.63 It is not binding precedent. IV. The Lemus Opinion As mentioned in Part II, Farris is not the only time Harris County’s Public Defender’s Office has advanced its argument concerning Article I, Section 10. The

Farris v. State, 581 S.W.3d at 925 (Goodman, J., dissenting). The Moore opinion emanated from the Texas Court of Appeals which was a predecessor of sorts to the Texas Court of Criminal Appeals. The Texas Court of Appeals was created by the 1876 Texas Constitution and was given appellate jurisdiction in all criminal cases and a few civil cases. The Greenbook: Texas Rules of Form Appendix B, p. 102 (Texas Law Review Ass’n ed., 12th ed. 2010). Only the opinions in criminal cases were officially reported. Id. The Texas Court of Appeals ceased to exist in 1892 when it was replaced with the present-day Texas Court of Criminal Appeals. Id. at Section 3.3, p. 1376. 62

argument was also advanced in Lemus v. State 64 and Pacas v. State. 65 In both cases, the intermediate appellate court said it was bound by precedent to reject the argument. The Lemus Court said: “As an intermediate appellate court, we lack the authority to overrule an opinion of the Court of Criminal Appeals.” Merrit v. State, 529 S.W.3d 549, 554 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d); Mason v. State,416 S.W.3d 720, 728 n.10 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (“When the Court of Criminal Appeals has deliberately and unequivocally interpreted the law in a criminal matter, we must adhere to its interpretation under the dictates of vertical stare decisis.”). Dabney expressly considered the very issue which appellant puts to this court. See Dabney, 124 Tex. Crim. Dabney, 124 Tex. Crim. at 22. We are bound by such authority as well. Because the Court of Criminal Appeals has already considered this argument and decided against appellant, we overrule appellant's first issue.66 It can hardly be said that the Court of Criminal Appeals has “deliberately and unequivocally” decided this issue. As explained above, the various opinions from the Court of Criminal Appeals on this issue have just cited previous cases. There has been no independent analysis. Ultimately, all of the opinions lead back to the 1886 Moore opinion which did not really analyze Article I, Section 10 at all. In fact, the best the Lemus Court could say about Moore was this: Appellant argues that the court in Moore v. State, while acknowledging that it was considering the constitutionality of the statute at issue in connection with both Article I, Section 10 and 15, “considered only constitutional provisions ... that spoke of the ‘right’ to a jury trial. The Court said nothing Lemus v. State, No. 14-18-00905-CR, 2020 WL 4521124 (Tex. App.—Houston [14th Dist.] Aug. 6, 2020, pet. ref’d) (mem. op., not designated for publication). 65 Pacas v. State, 612 S.W.3d 588 (Tex. App.—Houston [1st Dist.] 2020, pet. ref’d). 66 Lemus v. State, 2020 WL 4521124 at *2 (emphasis added). 64

about the unique, absolute-requirement language of Article I, Section 10.” See Moore, 22 Tex. Ct. App. 117, 2 S.W.634. However, the Moore court was clearly aware of both constitutional provisions at issue, citing to both provisions at the outset of its analysis. The court went on to hold that “[w]e are of opinion that our statute, ... allowing a waiver of a jury trial in misdemeanors, is not in conflict with our constitution .” Id. at 120, 2 S.W. at 636 (emphasis added). The Moore court did not state that its holding was limited to application or analysis of Article I, Section 15 of the Texas constitution. See id.; see also Dabney, 124 Tex. Crim. at 22.67 So the deliberate and unequivocal ruling on which the Lemus Court relied was that the Court 68 was “clearly aware of” Article I, Section 10. The Moore opinion did not really come to grips with Article I, Section 10. V. The Pacas Opinion Unlike Farris and Lemus, the Pacas opinion actually did contain independent analysis.69 The Pacas opinion looked at the two provisions in the Texas Bill of Rights70 dealing with juries. The two provisions, of course, are Article I, Section 10 and Article I, Section 15. In pertinent part, Section 10 says: In all criminal prosecutions, the accused shall have a speedy public trial by an impartial jury. Id. (emphasis added). Of course, the “Court” is not the Texas Court of Criminal Appeals. 69 Pacas was authored by Justice Kelly. He was joined by Chief Justice Radack. The third member of the panel, Justice Goodman, dissented as he did in Farris. 70 The Texas Bill of Rights is the entirety of Article I of the Texas Constitution. Notably, Section 29 of Article I reads as follows: Sec. 29. BILL OF RIGHTS EXCEPTED FROM POWERS OF GOVERNMENT AND INVIOLATE. To guard against transgressions of the high powers herein delegated, we declare that everything in this “Bill of Rights” is exempted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void. 67 68

The relevant portion of Section 15 says: The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency. The Court of Appeals correctly found that the two provisions are in pari materia because they both deal with the same general subject. That subject is the right to a jury trial. The Court said: Because article I, sections 10 and 15 are in pari materia, we read them in harmony, and when there is a conflict, the specific provision controls over the general provision.71 The Court of Appeals then found the two provisions to be in conflict. This was an implicit finding. The closest the Court came to saying the two provisions were in conflict was this: it is illogical to read the state constitution to simultaneously allow for the waiver of trial by jury in one provision while also mandating a trial by jury in another provision.72 Having found the two provisions to be in conflict, the Court proceeded to apply the rule that the specific provision controls over the general provision. The Court then reached this conclusion: We read the sections together, and because they each articulate rights with respect to a jury trial, the more specific article controls. See Vasilas, 253 S.W.3d at 273. Article I, Section 15, titled “Right to trial by jury” is more 71 72

Pacas v. State, 612 S.W.3d at 593. Id. at 592. 35

specific than article I, section 10, which explains the general rights of an accused in criminal prosecutions. We conclude that a harmonious reading of the Texas Constitution provisions allows for the waiver of the trial by jury. This is a questionable analysis for three reasons. First, after stating that two conflicting provisions should be harmonized if possible, the Court of Appeals immediately looked to see which provision is the more specific. But the Court’s analysis of which provision is the more specific was premature. Constitutional provisions often conflict in some way. But this is not to say the provisions conflict “irreconcilably.” Many (maybe even most) conflicts can be reconciled. This is to say, the provisions can be “harmonized” (or “reconciled”). Courts are actually duty-bound to harmonize conflicting provisions “so as to give effect to both.”73 The “primary rule” of statutory construction is as follows: Statutes in pari materia are to be taken, read and construed together, and effort should be made to harmonize, if possible, so that they can stand together and have concurrent efficacy.74 The United States Supreme Court has said: Indeed, “when two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” . . . [T]his Court has not hesitated to give See Texas Indus. Energy Consumers v. CenterPoint Energy Houston Elec., LLC, 324 S.W.3d 95, 107 (Tex. 2010) (“Here, we can construe the provisions in a way that harmonizes rather than conflicts.”). 74 Davis v. State, 968 S.W2d 368, 372 (Tex. Crim. App. 1998). 73

effect to two statutes that overlap, so long as each reaches some distinct cases.75 By moving straightaway to see which provision is the more specific, the Court of Appeals abandoned its duty to try to give effect to both provisions. Any effort to interpret the provisions so “they can stand together and have concurrent efficacy” was forsaken. 76 Instead, the Court moved directly to a tiebreaker (“specific provision controls over the general provision”) to see which provision lives and which provision dies. This was an error. The specific-controls-over-the-general tiebreaker is only to be employed if the statutes in question irreconcilably conflict. The Texas Supreme Court has made this clear: The insurers . . . argue that the specific statute applicable to surplus lines policies should prevail over the general statute applicable to all unauthorized carriers. But that rule of construction applies only when overlapping statutes cannot be reconciled; we believe these statutes can. 77 The Court of Appeals simply did not try to harmonize the statutes. Rather, it concluded (albeit sub silentio) that Section 10 and Section 15 irreconcilably conflict. They don’t. 78

J.E.M. Ag. Supply, Inc. v. Pioneer Hi-Bred Intern., Inc., 534 U.S. 124, 143-44, 122 S.Ct. 593, 151 L.Ed.2d 508 (2001) (internal citations omitted). 76 See id. 77 Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 86 (Tex. 2006) (emphasis added). 78 Statutes are irreconcilable only “when it is impossible to comply with the two competing statutory provisions at the same time.” Tex. Att’y Gen Op. No. GA-1035 (2014) at 2. 75

Second, by not trying to harmonize the provisions, the Court of Appeals neglected to consider a rather clear way in which the provisions can coexist. Section 10 addresses jury trials in criminal cases. Section 15 deals with jury trials in general (i.e., jury trials in both civil and criminal cases). Section 10 can be given effect by limiting its application to jury trials in criminal cases. Indeed, there is no question that Section 10 is, by its express terms,79 limited in this way. Section 15, on the other hand, can be given effect by limiting its application to civil cases. This is a logical way to harmonize the two provisions and give effect to both of them. Neither provision needs to die. Third, suppose the Court of Appeals was correct in moving at once to an analysis of which provision is the more specific. The Court erred in determining that Section 15 is more specific than Section 10. The Court’s entire statement of its reasoning was quite brief: Article I, section 15, titled “Right to trial by jury” is more specific than article I, section 10, which explains the general rights of an accused in criminal prosecutions. 80 So because Section 10 also speaks of rights defendants possess (i.e., confrontation, compulsory process, grand jury indictment) Section 10 is less specific than Section 15? This is debatable. The contrary conclusion – that Section 10 is more

79 80

Tex. Const. art. I, section 10 (“In all criminal prosecutions . . . .”). Pacas v. State, 612 S.W.3d at 593. 38

specific than Section 15 – actually makes more sense. This is because Section 10 addresses the right to a jury trial in criminal cases while Section 15 concerns the jurytrial right in all cases. A motion for en banc reconsideration was filed with the Court of Appeals detailing the foregoing three reasons that the Court’s opinion was problematic. It was denied without comment. And the Court of Criminal Appeals refused the petition for discretionary review filed in the case. If this argument is advanced in other appellate courts of appeals, the conclusions of the First and Fourteenth Courts of Appeals should be questioned. Perhaps other intermediate courts of appeals will see this issue differently.

SYSTEMIC ARGUMENT THREE Court A has no Jurisdiction if Indictment is presented by Court B’s Grand Jury I. Challenging a systemic practice in Harris County The single issue in Gutierrez v. State81 involved the propriety of a systemic practice in Harris County. The practice is not just a matter of informal custom. It is actually dictated by an order known as the Harris County Direct Filing Order. Specifically, the practice is one in which the grand jury impaneled by one district court presents indictments to a different district court. Mr. Gutierrez challenged this practice.82 He summarized his argument as follows: German Gutierrez argues that the court in which he was convicted – Harris County’s 184th District Court – never had jurisdiction of his case. This is because the grand jury that indicted him was the grand jury impaneled by Harris County’s 178th District Court. The only court to which the grand jury could present its indictment was the 178th District Court. But the grand jury did not present the indictment to the 178th District Court. Rather, the grand jury presented the indictment directly to the 184th District Court. 83 Under the law, the grand jury for one district court has no authority to present an indictment to a second district court. Any indictment so presented does not vest jurisdiction in the second district court (or in the first district court either).84

Gutierrez v. State, No. 01-18-00624-CR, 2020 WL 237935 (Tex. App. Houston [1st Dist.] Jan. 16, 2020, pet. ref’d) (mem. op., not designated for publication). 82 In other words, Mr. Gutierrez challenged Harris County’s Direct Filing System. 83 This was not a transfer situation. The grand jury did not first present the indictment to the 178th District Court which then transferred the case to the 184th District Court. 84 Brief for Appellant in Gutierrez v. State at 20. And if a court does not have jurisdiction, any order or judgment entered by that court is void. 81

The theory advanced by Mr. Guitierrez is that a grand jury can return an indictment only to the court that impaneled the grand jury. There is a significant amount of law supporting this argument. We begin with the relevant provision of the Texas Constitution – Article V, Section 12(b); An indictment is a written instrument presented to a court by a grand jury charging a person with the commission of an offense. An information is a written instrument presented to a court by an attorney for the State charging a person with the commission of an offense. The practice and procedures relating to the use of indictments and informations, including their contents, amendment, sufficiency, and requisities, are as provided by law. The presentment of an indictment or information to a court invests the court with jurisdiction of the cause. The final sentence is significant.

The bare language indicates that the

presentment of an indictment to any court will invest that court with jurisdiction. But this is not the case. Not any court will do. 85 Only an appropriate court obtains jurisdiction upon presentment of an indictment. And our Court of Criminal Appeals has indicated there is only one such appropriate court. In Cook v. State, the Court said “[j]urisdiction vests only upon the filing of a valid indictment in the appropriate court.86

Rather obviously, the presentment of a felony indictment to a justice court would not give that court jurisdiction over the felony case. See Ex parte Ward, 560 S.W.2d 660, 662 (Tex. Crim. App. [en banc] 1978). 86 Cook v. State, 902 S.W.2d 471, 476 (Tex. Crim. App. 1995) (emphasis added) (citing Tex. Const. art. V, § 12(b)). Accord Potter v. State, Nos. 01-94-00501-CR, 01-94-00502-CR, 1995 WL 752460, at *1 (Tex. App.—Houston [1st Dist.] Dec. 21, 1995, pet. ref’d) (mem. op., not designated for publication) (“The presentment of a valid indictment in the appropriate court is necessary to vest a trial court with jurisdiction over a criminal case.”) (emphasis added). 85

The statement indicates there is only one appropriate court in which an indictment can be filed that will give the court jurisdiction. So what is the one appropriate court to which a grand jury is to present an indictment?

This question is answered by looking at the statutes regarding

indictments.87 The relevant statutes are found in Chapters 19 and 20 of the Code of Criminal Procedure. II. Articles 19 and 20 of the Texas Code of Criminal Procedure Chapter 19 of the Code of Criminal Procedure is entitled “Organization of the Grand Jury.” Chapter 20 is labeled “Duties and Powers of the Grand Jury.” The statutes in these two chapters refer repeatedly to “the court.” What do the statutes mean when they speak of “the court?” The answer is that the statutes mean the court that impaneled the grand jury. This is clear by looking at the many statutes in Chapter 19 that mention “the court.” 88 For example, Article 19.26 requires “the court” to select and impanel grand jurors. As explained by the Fifth Circuit Court of Appeals, this reference to “the court” means a particular district court: In Texas, grand jury proceedings bear a very close relationship with criminal trial proceedings. The grand jury is said to be “an arm of the court by which it is appointed.” Dallas County Dist. Attorney v. Doe, 969 S.W.2d 537, 542 (Tex. App. 1988). The district court impanels the grand jury after testing the qualifications of its members, administers the jurors’

As Article V, § 12 says, “[t]he practice and procedures relating to the use of indictments . . . are as provided by law.” 88 For a detailed analysis of these statutes, see Brief for Appellant in Gutierrez v. State at 42-45. 87

oath, and instructs then as to their duties as grand jurors. Tex. Code Crim. P. art. 19.24, 19.26, 19.32, 19.34, 19.35. 89 Like Chapter 19, Chapter 20 contains many references to “the court.”90 For example, Article 20.06 authorizes the grand jury to “seek and receive advice from the court touching any matter before them.” In Ex parte Edone, the Court of Criminal Appeals mentioned that the grand jury may seek the court’s advice. In so doing, the Court clarified that the court from which the grand jury may seek advice is the impaneling court: Once formed and impaneled by the district judge, the grand jury shall “inquire into all offenses liable to indictment of which any member may have knowledge, or of which they shall be informed by the attorney representing the State, or any other credible persons.” Art. 20.09, V.A.C.C.P. After hearing all testimony accessible to them, the grand jurors vote as to presentment of an indictment. Art. 20.19, V.A.C.C.P. While the grand jury may seek advice from the court, Art. 20.06, V.A.C.C.P., their deliberations concerning any inquiry into presentment of an indictment are secret. Art. 20.02, V.A.C.C.P. 91 As this quotation shows, the grand jury may seek advice from “the court.” Logically, “the court” must be the court presided over by the judge who “formed and impaneled the grand jury.” The reference to “the court” comes two sentences after the reference to the “district judge” who “formed and impaneled” the grand jury. Both references are in the same paragraph.

Tex. Ass’n of Bus. v. Earle, 388 F.3d 515, 521 (5th Cir, 2004) (emphasis added). For a detailed analysis of these statutes, see Brief for Appellant in Gutierrez v. State at 45-50. 91 Ex parte Edone, 740 S.W.2d 446, 448 (Tex. Crim. App. 1987) (emphasis added). 89

So in both Chapter 19 and Chapter 20, the term “the court” is used repeatedly to mean the court that impaneled the grand jury. This conclusion informs our understanding of the term “the court” in the last two statutes in Chapter 20 – Articles 20.21 and 20.22. These two statutes are integral to the argument that a grand jury must return its indictments to the court that impaneled the grand jury. Article 20.21 is entitled “Indictment Presented” and says: When the indictment is ready to be presented, the grand jury shall through their foreman, deliver the indictment to the judge or clerk of the court. At least nine members of the grand jury must be present on such occasion.92 There is no reason to think the reference to “the court” in Article 20.21 means anything other than the impaneling court. Consistently throughout Chapters 19 and 20, the term “the court” means the impaneling court. The term does not suddenly take on a broader meaning in Article 20.21. All the provisions in Chapters 19 and 20 must be read together. In his exhaustive work on statutory construction, Baylor Law School Professor Ron Beal discussed “reading the statute as a whole:” Many lawyers and jurists commence their analysis of a statute with this canon. As we all know, if there is an ambiguity in a statute, it will be in the form of a word, phrase, sentence, paragraph, or even a section or sections of a statute. Since all of the former are an integral part of the statute as a whole, each one must be ultimately interpreted in light of the overall purposes of the legislature in enacting the statute. Thus, a court very well begins, and most assuredly completes, its analysis of an ambiguity by making sure its resolution is consistent with or in context 92

Tex. Code Crim. Proc. art. 20.21 (emphasis added). 44

with the entire statute. Stated another way, a court must always consider the statute as a whole rather than its isolated provisions[.] For a court should not give one provision a meaning that is out of harmony or inconsistent with the other provisions, although it might be susceptible to such a construction standing alone. In the end, a provision must be construed in light of the entire act, its nature, its object, and its consequences.93 So the meaning of “the court” in Article 20.21 should be determined in the context of the other provisions in Chapters 19 and 20. In that context, the term “the court” means the court that impaneled the grand jury. Given this meaning, the significance of Article 20.21 is clear. A grand jury must present an indictment to the judge of clerk of the impaneling court.94 III. Criminal law commentators have understood that a grand jury is to return an indictment to the court that impaneled the grand jury The language in Chapters 19 and 20 of the Code of Criminal Procedure was not the only basis for the argument advanced in Gutierrez. Criminal-law commentators have long understood this to be the case. Speaking of Article 20.21 and the judges who impanel grand juries, Professors George Dix and John Schmolesky wrote:

Ron Beal, The Art of Statutory Construction: Texas Style, 64 Baylor L. Rev. 339, 374-75 (2012) (internal footnotes omitted) (emphasis added). 94 Chapter 20’s final statute is Article 20.22. This statute says that generally “[t]he fact of a presentment of indictment by a grand jury shall be entered in the record of the court.” Tex. Code Crim. Proc. art. 20.22 (emphasis added). The statute’s reference to “the court” – in the context of Chapters 19 and 20 – also refers to the impaneling court. 93

Whether the judge must be present when the indictment is presented is doubtful since the Code provides for the grand jury to present the indictment “to the judge or clerk of the court.”95 In making this statement, the professors apparently understood that an indictment must be presented to the court (i.e., the judge) that impaneled the grand jury. To avoid situations in which the grand jury cannot present an indictment because the judge is absent, the court’s clerk can receive the indictment. There is no statute authorizing the grand jury to present the indictment to a different judge or court. Additionally, the authors of a Corpus-Juris-Secundum article say a grand jury “is to make inquiry” for “the court in which it is impaneled.”96 The corollary, of course, is that a grand jury does not make inquiry for other courts. IV. Case Law Three authoritative appellate-court opinions support the proposition that a grand jury can present an indictment only to the court that impaneled the grand jury. These opinions will be detailed below. A. Lytle v. Halff – Texas Supreme Court (1889) There has been an understanding in Texas for over 130 years that is relevant here. The understanding is that a district court without a functioning grand jury has

41 George Dix and John Schmolesky, Texas Practice Series, Criminal Practice and Procedure § 23.22 (3rd ed. Updated November 2015) (quoting Article 20.21 of the Code of Criminal Procedure). 96 42 C.J.S. Indictments § 16 (2015). 95

power to hear criminal cases only via transfers from other district courts. The opinion saying so is Lytle v. Halff.97 Lytle examined the constitutionality of a legislative act creating two district courts in Bexar County where there had only been one.98 Prior to the act, the only district court in Bexar County was the 37th District Court. The act created a new district court – the 45th. 99 Curiously, the act provided that “no grand jury should be organized in the forty-fifth district.100 The judge of the 37th District Court was directed to organize a grand jury at each term of court. 101 The grand jury was “to inquire into all offenses committed within the entire county.102 Indictments from the grand jury were to be “made returnable to the district court for the thirty-seventh judicial district.”103 The act authorized both of the district judges to transfer any cause – civil or criminal – to the other court.104

Lytle v. Halff, 12 S.W. 610 (Tex. 1889). Id. at 610. A losing civil litigant in the newly created district court appealed, contending the act was unconstitutional. Id. at 611. The party argued that the Texas Constitution impliedly prohibited the creation of multiple district courts in one county. Id. 99 The act divided Bexar County into two geographical regions – one region constituted the 37th District and the other region constituted the 45th District. Id. The two courts had concurrent jurisdiction in the entire county. Id. Residents of the 37th District would elect the 37th District Judge while residents of the 45th District would elect the 45th District Judge. Id. at 610, 612. 100 Id. at 610. 101 Id. 102 Id. Grand jurors were to “be selected and drawn from the body of the county.” Id. Indictments from the grand jury were to be “made returnable to the district court for the thirty-seventh judicial district.” 103 Id. 104 Id. 97 98

The appellant questioned the constitutionality of the part of the act providing for no grand jury in the 45th District Court. 105 The Supreme Court described the appellant’s assertion as follows: It is suggested that so much of the act as assumes to deny to the district court to be held in the forty-fifth judicial district the power to impanel and have the services of a grand jury, and in so far as it assumes to deny the power of the court other than such as may be transferred to it by the court to be held in the thirty-seventh district, it is contrary to the constitution. 106 The Supreme Court found it unnecessary to pass upon the foregoing question to resolve the case.107 But the Court accepted the idea that there was only one way the 45th District Court could try a criminal case. That one way was for the case to be transferred from the 37th District Court: No person can be held to answer for a felony unless on the indictment of a grand jury, (Const. art. 1. § 10;) and it may be true that an act which denies to a district court a power to have inquisition and accusation by a grand jury, denies, in essential matter, the full exercise of that jurisdiction conferred on such courts; for if the court has no power to have an accusation made, as required by the constitution, the basis for its power to hear and determine is taken away, except in so far as indictments may be sent to it by another court for trial.108 As the quotation shows, our Supreme Court never envisioned that the grand jury impaneled by one district court could present indictments to another district court. The

Id. at 614. Id. 107 Id. 108 Id. 105 106

only way the other district court could acquire jurisdiction of a criminal case would be via a transfer from the first district court. Having the 37th District Court’s grand jury present an indictment to the 45th District Court was something the Supreme Court never even conceived. B. Brady v. State – Texas Court of Criminal Appeals (1931) In 1931, the Court of Criminal Appeals considered the case of Brady v. State out of Grayson County.109 There were two district courts in Grayson County at the time – the 15th District Court and the 59th District Court. The defendant had been indicted for driving while intoxicated by the 15th District Court’s grand jury. But he was tried in the 59th District Court. On appeal, the defendant argued that the record contained no order transferring the case from the 15th District Court to the 59th District Court. The Court of Criminal Appeals agreed that the lack of a transfer order would be problematic. But, according to the Court, it was too late to complain about the lack of a transfer on appeal. The Court simply assumed the proper transfer had been made: [I]n instances in which there are two district courts, each having criminal jurisdiction, situated in the same county, and the legislative provision authorizing the transfer of cases from one to another, it is too late on appeal to complain, as is done in the present case, that the trial is upon an indictment filed in one of the courts and the trial is had in the other. 110

109 110

Brady v. State, 44 S.W.2d 373 (Tex. Crim. App. 1931). Id. at 375. 49

While not explicitly stated, the Court recognized there was only one way the 59th District Court could obtain jurisdiction of the case. That singular way was a transfer from the 15th District Court to the 59th District Court. The Court never even considered the possibility that the grand jury for the 15th District Court could return an indictment to the 59th District Court. Thus, the Court of Criminal Appeals recognized the grand jury for one court cannot return an indictment to a different district court. The opinion was consistent with Lytle v. Halff. C. Mosley v. State – Texas Court of Criminal Appeals (1962) Mosley v. State concerned a Harris County murder case.111 An indictment for murder had been returned to Criminal District Court No. 3. But the case was tried in Criminal District Court No. 5. The defendant complained (for the first time on appeal) that there had been no transfer from Court No. 3 to Court No. 5. Relying on Brady v. State, the Court of Criminal Appeals presumed the proper transfer had been made and affirmed the conviction. The key point of Mosley is what the Court of Criminal Appeals did not say. The Court did not say the return of an indictment to one court (District Court No. 3) gave another court (District Court No. 5) jurisdiction. Rather, the Court implicitly recognized that the return of an indictment to one court (e.g., District Court No. 3) gives jurisdiction only to that court. Only a transfer could give jurisdiction to a different district court (e.g., District Court No. 5).

111

Mosley v. State, 354 S.W.2d 391 (Tex. Crim. App. 1962). 50

V. Gutierrez was the seventh case advancing the current argument in the First Court of Appeals The First Court of Appeals had rejected the argument made by Mr. Gutierrez six separate times. 112 The Gutierrez opinion is discussed in this paper because the argument was the most fully developed. This was also the one case in which there was an oral argument. In his briefing, Mr. Gutierrez focused on all of the shortcomings in the First Court’s previous six opinions. But the Court of Appeals rejected Mr. Gutierrez’s arguments.113 And the Court of Criminal Appeals refused the petitions for review filed in each of the six cases.

The six opinions previously decided by the Court were: (1) Davis v. State, 519 S.W.3d 251 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d); (2) Hernandez v. State, No. 01-15-00837-CR, 2017 WL 1416877 (Tex. App.—Houston [1st Dist.] April 20, 2017, pet. ref’d) (mem. op., not designated for publication); (3) Shepherd v. State, No. 01-16-00748-CR, 2017 WL 2813165 (Tex. App.—Houston [1st Dist.] June 29, 2017, pet. ref’d) (mem. op., not designated for publication); (4) Henderson v. State, 526 S.W.3d 818 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d); (5) Allen v. State, No. 01-16-00768-CR, 2018 WL 4138965 (Tex. App.—Houston [1st Dist.] Aug. 30, 2018, pet. ref’d) (mem. op., not designated for publication); and (6) Payne v. State, No. 01-16-00977-CR, 2018 WL 4190047 (Tex. App.—Houston [1st Dist.] Aug. 31, 2018, pet. ref’d) (mem. op., not designated for publication). 113 The Fourteenth Court of Appeals has also rejected this argument in multiple opinions. But the Fourteenth Court of Appeals never entertained oral argument in any of the cases. See (1) Johnson v. State, 562 S.W.3d 168 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d); (2) Rodriguez v. State, No. 1416-00968-CR, 2018 WL 542239 (Tex. App.—Houston [14th Dist.] Jan. 25, 2018, no pet.) (mem. op., not designated for publication); (3) Nguyen v. State, No. 14-17-00090, 2017 WL 6329881 (Tex. App.— Houston [14th Dist.] Dec. 12, 2017, pet. ref’d) (mem. op., not designated for publication); (4) Conway v. State, No. 14-17-00060-CR, 2017 WL 5472642 (Tex. App.—Houston [14th Dist.] Nov. 14, 2017, no pet.) (mem. op., not designated for publication); (5) Saldivar v. State, 542 S.W.3d 43 (Tex. App.— Houston [14th Dist.] 2017, pet. ref’d); (6) Matthews v. State, 530 S.W.3d 744 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d); and (7) Aguillon v. State, No. 14-17-00002-CR, 2017 WL 3045797 (Tex. App.—Houston [14th Dist.] July 18, 2017, pet. ref’d) (mem. op., not designated for publication). 112

VI. The Court of Appeals’ reasoning in Gutierrez The First Court of Appeals’ opinion is notable mainly for the things it did not address. First, the opinion did not address the three cases relied on by Mr. Gutierrez. Those three cases were Lytle v. Halff, Brady v. State, and Mosley v. State. Second, the opinion did not address the comments of Professors Dix and Schmolesky. Nor did the opinion address the quotation from Corpus Juris Secundum. Third, the opinion treated the argument based on the language in Chapters 19 and 20 of the Code of Criminal Procedure very lightly. 114 The Court said: To the extent there may be friction between the use of an indefinite article in the constitution and a definite article in some statutes, the fundamental jurisdiction conferred by the constitution is not affronted by the filing procedure that occurred here. . . . We cannot say that the Legislature’s use of “the court” in certain procedural statutes and “a court” in a constitutional provision demonstrates the intent that a grand jury in a multi-district county may only return an indictment to the specific court that impaneled it.115

114 115

Notably, the comments by Professor Beal were ignored. Gutierrez v. State at *2. 52

SYSTEMIC ARGUMENT FOUR Most Statutory County Courts have no Criminal Jurisdiction I. Fundamentals regarding county-level courts Article V, Section 16 declares “[t]he County Court has jurisdiction as provided by law.”116 Thus, the precise contours of the jurisdiction given to constitutional county courts by the Constitution are spelled out by the Legislature. The specific statute dealing with original criminal jurisdiction of constitutional county courts is Section 26.045 of the Government Code. Subsections (a) and (c) are relevant: (a) Except as provided by Subsection (c), a county court has exclusive original jurisdiction of misdemeanors other than misdemeanors involving official misconduct and cases in which the highest fine that may be imposed is $500 or less. (c) Except as provided by Subsections (d) and (f), a county court that is in a county with a criminal district court does not have any criminal jurisdiction.117

The “county court” referred to in this provision is the constitutional county court. There is one (and only on) in each of the 254 counties of Texas. It is not a reference to the numerous county-level courts created by statute. Title 2 of the Government Code deals with the judicial branch of Texas government. The title consists of Chapters 21 through 157. Section 21.009 is entitled “Definitions” and reads in its entirety as follows: In this title: (1) “County court” means the court created in each county by Article V, Section 15, or the Texas Constitution. (2) “Statutory county court” means a county court created by the legislature under Article V, Section 1, of the Texas Constitution, including county courts at law, county criminal courts, county criminal courts of appeals, and county civil courts at law, but does not include statutory probate courts as defined by Section 3, Probate Code. 117 Tex. Gov’t Code § 26.045(a), (c) (emphasis added). 116

“Exclusive jurisdiction is the power a court exercises over an action or person to the exclusion of all other courts.”118 Exclusive jurisdiction can only be granted to one tribunal. 119 If jurisdiction is lodged in more than one type of court, then concurrent jurisdiction exists. 120 Exclusive jurisdiction and concurrent jurisdiction are mutually exclusive concepts.121 Thus, if exclusive jurisdiction of a particular subject-matter is vested in one type of court, no other type of court may exercise that jurisdiction. There is no such thing as concurrent exclusive jurisdiction – such a term would be an oxymoron. Subsection (a) is the key part of Section 26.045.

This subsection vests

constitutional county courts with exclusive original jurisdiction of all misdemeanors except for two exceptional categories. The first exceptional category consists of those misdemeanors involving official misconduct. The second category involves Taub v. Aquila Southwest Pipeline. Inc., 93 S.W.3d 451, 456 n.8 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (citing Black’s Law Dictionary 564 (6th ed. 1990)). 119 67 J. Bruce Bennett, Primary Jurisdiction in Texas; Has the Texas Supreme Court Clarified or Confused It?, 5 Tex. Tech J. Tex. Admin. Law 177, 178 (2004). 120 See Black’s Law Dictionary 855 (7th ed. 1999) (“concurrent jurisdiction” is “jurisdiction exercised by more than one court over the same subject matter and within the same territory”); See also Richardson v. First Nat’l Life Ins. Co., 419 S.W.2d 836, 837-38 (Tex. 1967) (“The jurisdiction given by this language is not concurrent with the jurisdiction of the other courts, but is an exclusive jurisdiction within its field.”); Tovias v. Wildwood Properties P’ship, 67 S.W.3d 527, 529 (Tex. App.— Houston [1st Dist.] 2002, no pet.) (“Neither court had exclusive subject matter jurisdiction; each had concurrent subject matter jurisdiction.”). 121 See Claflin v. Houseman, 93 U.S. 130, 136 (1876) (“if exclusive jurisdiction [in the federal courts] be neither express nor implied, the State courts have concurrent jurisdiction”); Ex parte Wilbarger, 55 S.W. 968, 970 (Tex. Crim. App. 1900) (“The justice court is not vested with exclusive jurisdiction, and therefore has no guarantee that its jurisdiction may not be invaded by investing concurrent jurisdiction in other courts.”); Mercer v. Phillips Natural Gas Co., 746 S.W.2d 933, 938 (Tex. App.— Austin 1988, writ denied) (“The jurisdiction granted by H.B. 2413 was either concurrent or it was exclusive.”) (emphasis added). 118

misdemeanors in which the maximum fine is $500 or less. Class A and B misdemeanors do not fit within this second exception because the highest fine that may be imposed in such cases exceeds $500.122 In short, Subsection (a) gives most constitutional county courts exclusive jurisdiction over all Class A and B misdemeanors except those involving official misconduct. The reason the word “most” is used is that not all constitutional county courts have such jurisdiction. The first clause of subsection (a) says “[e]xcept as provided by Subsection (c).” Thus, one must look to Subsection (c) to see which constitutional county courts are not given the exclusive jurisdiction discussed above. Subsection (c) provides that “a county court that is in a county with a criminal district court does not have any criminal jurisdiction.” A criminal district court is different from a district court that exercises criminal jurisdiction or a district court that gives preference to criminal cases. A criminal district court is a special kind of district court established under Subchapter E of Chapter 24 of the Government Code. Criminal district courts exist in only four counties: Dallas, El Paso, Jefferson, and Tarrant. 123 Thus, in these four counties, the constitutional county court does not have

See Tex. Penal Code Ann. § 12.21 (maximum Class A misdemeanor fine is $4,000); Tex. Penal Code Ann. § 12.22 (maximum Class B misdemeanor fine is $2,000) 123 Tex. Gov’t Code Ann. §§ 24.901-920. 122

exclusive jurisdiction over Class A and B misdemeanors. In fact, in these four counties, the constitutional county court “does not have any criminal jurisdiction” whatsoever. 124 There are no criminal district courts in the other 250 Texas counties.125 This includes Harris County.

Accordingly, the exception to the general rule under

Subsection (c) of Section 26.045 does not apply in these counties. Rather, the general rule set out in Subsection (a) applies. This means the constitutional county court of these counties has exclusive jurisdiction of all Class A and B misdemeanors other than misdemeanors involving official misconduct. Or at least that is what appears to be the case upon reading Section 26.045. For any one of the 250 counties without criminal district courts, three other possibly relevant statutes must be consulted. First, one must look at Subchapter E of Chapter 26 of the Government Code which is entitled “Provisions Relating to Particular Counties.126 These provisions concern the constitutional county courts in many of our state’s 254 counties. These provisions can alter the exclusive Class A and B misdemeanor jurisdiction constitutional county courts have under Section 26.045. For example, the provision concerning Denton County127 states simply that “[t]he County Court of Denton County has no See Tex. Gov’t Code Ann. § 26.045(c). See also 40 George Dix and John Schmolesky, Texas Practice Series, Criminal Practice and Procedure § 4:39 (3d ed. Updated November 2015). 125 Id. 126 Tex. Gov’t Code Ann. §§ 26.103-353. 127 Tex. Gov’t Code Ann. § 26.161. 124

probate, juvenile, civil, or criminal jurisdiction.” Consequently, the Denton County Court does not have exclusive Class A and B misdemeanor jurisdiction. A special provision concerning Aransas County does exactly the same thing.128 In total, there are special statutes for 106 of the 250 constitutional county courts in which there are no criminal district courts. Most of the 106 statutes do not take away jurisdiction of the constitutional county court as do the statutes affecting Denton County and Aransas County. 129 But there is no special statute for the constitutional county courts in the remaining 144 counties. This includes Harris County and other large counties such as Ector, Ellis, Fort Bend, Galveston, McLennan, Midland, Potter, and Smith. Second, one must examine the global statute giving jurisdiction to statutory county courts in Texas. That statute is Section 25.0003 of the Government Code. creating county courts at law. Subsection (a) speaks to criminal cases and reads in its entirety as follows: A statutory county court has jurisdiction over all causes and proceedings, civil and criminal, original and appellate, prescribed by law for county courts. Third, one needs to look at the Government Code provision dealing with a specific county’s statutory county courts. Not all counties have statutory county courts.

128

129

Tex. Gov’t Code Ann. § 26.104. For example, the provision in Brewster County deals with terms of court. Tex. Gov’t Code § 26.122. 57

In fact, more than half do not. But for those counties that do have such courts, the statute creating the particular court will be found in Subsection C of Chapter 25 of the Government Code. For example, the provision for the county criminal courts at law in Harris County is Section 25.1033. Subsection (a) addresses criminal jurisdiction: A county criminal court at law in Harris County has the criminal jurisdiction provided by law for county courts, concurrent jurisdiction with civil statutory county courts for Harris County to hear appeals of the suspension of a driver’s license and original proceedings regarding occupational driver’s licenses, and appellate jurisdiction in appeals of criminal cases from justice courts and municipal courts in the county. II. The Conundrum in Harris County Section 26.045 of the Government Code (the constitutional-county-court statute) gives exclusive jurisdiction of most misdemeanors to constitutional county courts. Sections 25.0003 and 25.1033 of the same code (the statutory-county-court statutes) give Harris County’s criminal courts at law the same jurisdiction. If statutory county courts have jurisdiction of cases over which constitutional county courts exercise exclusive jurisdiction, then constitutional county courts no longer have exclusive jurisdiction. Thus, the statutory county court statutes clearly conflict with the constitutional county court statute. The question before us concerns how this conflict should be resolved.

III. Overview of Dailing v. State The case of Dailing v. State130 involved a DWI conviction in Harris County Criminal Court at Law No. 8. 131 On appeal, Ms. Dailing argued that the trial court never had jurisdiction over her case. She reasoned that the constitutional county court of Harris County had exclusive jurisdiction over her case. Therefore, no other court could exercise jurisdiction. 132 Ms. Dailing pointed out the conflict in the statutes discussed above. She then advanced two independent arguments. First, she argued that the statute giving exclusive jurisdiction to constitutional county courts is of constitutional dimension. Thus, the constitutional-county-court statute trumps the statutory-county-court statutes. Alternatively, Ms. Dailing maintained that the constitutional-county-court statute should prevail over the statutory county court statutes on the basis of statutory construction. We will examine each of these arguments in turn. IV. Dailing’s constitutional argument The statutes purporting to give jurisdiction of Class A and B misdemeanors to statutory county courts violate the Texas Constitution. The reasons underlying this conclusion are set out below.

Dailing v. State, 546 S.W.3d 438 (Tex. App.—Houston [14th Dist.] 2018, no pet.). There are 16 county criminal courts at law in Harris County. 132 Ms. Dailing’s brief contains her highly detailed, step-by-step argument. The argument is only summarized here. 130 131

The Texas Constitution says “[t]he County Court has jurisdiction as provided by law.”133 The Government Code then says constitutional county courts have “exclusive original jurisdiction” of most misdemeanors.134

The combined effect of these

provisions is a constitutional grant of exclusive original jurisdiction over most misdemeanors to the constitutional county courts. More needs to be said about this “combined effect.” First of all, it is significant that constitutional county courts are created by the Texas Constitution. Article V, Section 15 declares that “[t]here shall be established in each county in this State a County Court which shall be a court of record[.]” Next, Article V, Section 16 addresses the jurisdiction of county courts, saying “[t]he County Court has jurisdiction as provided by law.”135 The precise wording of this provision is tremendously significant. The wording differs markedly from the wording of constitutional provisions that simply direct the Legislature to do a particular act. As examples of a constitutional provisions directing the Legislature to perform a particular act, consider three other sections in Article V of the Texas Constitution. The three sections are Sections 1, 20, and 23.

Tex. Const. art. V. § 16. Tex. Gov’t Code Ann. § 26.045(a) (West Supp. 2015). “Most misdemeanors” is shorthand for “misdemeanors other than misdemeanors involving official misconduct and cases in which the highest fine that may be imposed is $500 or less.” 135 Tex. Const. art. V, § 16 (emphasis added). The law, of course, is set out in Government Code, Section 26.045. 133 134

Article V, Section 1 says “[t]he Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof.” Article V, Section 1 does not say these legislatively-created courts “ha[ve] jurisdiction as provided by law.” Rather, Article V, Section 1 simply authorizes the Legislature to prescribe the jurisdiction of these courts. Whatever jurisdiction the Legislature chooses to grant to these courts is not of constitutional magnitude. Article V, Section 20 concerns county clerks and declares that the “duties, perquisites, and fees of office shall be prescribed by the Legislature.” 136 Under this provision, the duties of county clerks are not constitutional in nature. Rather, they are simply statutory duties the Legislature is authorized to establish pursuant to a constitutional provision. Article V, Section 23, which concerns sheriffs, works the same way. The provision says the “duties, qualifications, perquisites, and fees of office, shall be prescribed by the Legislature.”137 This does not mean a statute detailing a sheriff’s duties is of constitutional character. The provision simply authorizes the Legislature to establish such duties. The language of Article V, Section 16 is different. Instead of saying the Legislature shall prescribe the jurisdiction of county courts, Article V, Section 16 says

136 137

Tex. Const. art. V, § 20 (emphasis added). Tex. Const. art. V, § 23 (emphasis added). 61

“[t]he County Court has jurisdiction as provided by law.” This language indicates the law providing for the jurisdiction of constitutional county courts is to be incorporated into the Texas Constitution by reference. And as explained earlier, the law providing for the jurisdiction of constitutional county courts is set out in Government Code, Section 26.045. Thus, through the principle of incorporation by reference, Article V, Section 16 effectively says “the County Court has exclusive original jurisdiction of most misdemeanors.” In other words, the Texas Constitution gives exclusive original jurisdiction of most misdemeanors to constitutional county courts. This means the statutory-county-court-jurisdictional statutes conflict not only with Article 26.045(a), but with the Texas Constitution itself. This is because Article V, Section 16 effectively says “[t]he county court has exclusive original jurisdiction of most misdemeanors.” Conflicts between statutes are resolved by applying the rules of statutory construction. But there is no need to resort to such rules when the conflict is between a statute and a constitutional provision. In such a situation, the constitutional provision always prevails. A statute conflicting with the Constitution is, obviously, unconstitutional. Consider a constitutional grant of exclusive jurisdiction over a certain subject matter to a particular type of court. Any statute purporting to give jurisdiction of that subject matter to a different type of court is necessarily unconstitutional. This is

because such a statute would deprive the first court of its constitutionally-bestowed exclusive jurisdiction. County-government expert on county government David Brooks has drummed home the foregoing point. Mr. Brooks has said the "legislature cannot deprive a district court or other constitutional court of its constitutional jurisdiction by the creation of a statutory court.”138 He noted “[t]here is no prohibition in the Constitution preventing the Legislature from establishing a statutory court which shares the non-exclusive jurisdiction of a constitutional court.” 139 Mr. Brooks’ use of the term “non-exclusive jurisdiction” is significant. By doing so, he signifies the converse is also true. In other words, the Constitution prevents the Legislature from sharing the exclusive jurisdiction of a constitutional court. As Mr. Brooks said, “[t]he exclusive jurisdiction of the district court over certain matters preclude[s] the legislature from creating statutory courts with concurrent jurisdiction.”140 Numerous appellate opinions say the legislature cannot deprive a court of its constitutionally-created jurisdiction. The leading case in this area is Reasonover v. Reasonover. 141 The case involved a challenge to a legislative act giving exclusive jurisdiction of divorce cases to the Criminal District Court of Willacy County. 142 The 36 David Brooks, Texas Practice Series, County and Special District Law at 329 (2nd ed. Updated August 2015). 139 Id. (emphasis added). 140 Id. at 334. 141 Reasonover v. Reasonover, 58 S.W.2d 817 (Tex. 1933). 142 Id. at 818. 138

same act deprived the 103rd District Court of jurisdiction over divorces. 143 The Supreme Court of Texas held the act was prohibited by the Texas Constitution: It is the opinion of this court that in adopting the amendment to the Constitution in 1891, authorizing the Legislature to create other courts, and providing that it ‘may conform the jurisdiction of the district and other inferior courts thereto,’ it was not intended to take away from and deprive the regular district courts of the jurisdiction specifically given to them by the Constitution. No provision of the Constitution anywhere intimates such a withdrawal or negation of jurisdiction. The simple fact that the people amended the Constitution so as to authorize the Legislature to create other courts than those theretofore provided by the Constitution, and to conform the jurisdiction of the district courts to them when created, does not authorize the Legislature to deprive district courts of that jurisdiction expressly given them by the Constitution. 144 The Court of Criminal Appeals followed the Reasonover opinion in Mata v. State.145 At issue was a statute saying the 156th District Court had only civil jurisdiction. 146 The criminal appellant argued that the 156th District Court therefore had no jurisdiction to handle his case and convict him. 147 The Court of Criminal Appeals disagreed: Article V, § 8, Texas Constitution, establishes the constitutional jurisdiction of a district court giving it jurisdiction over both civil and criminal cases. As pointed out in Reasonover v. Reasonover, 58 S.W.2d 817 (Tex. 1933), the Legislature cannot by statute take away from a district court jurisdiction given it by the State Constitution. Citing Reasonover, the Supreme Court of Texas reached the same result in Lord v. Clayton, 352 S.W.2d 718 (Tex. 1961). See also Ex parte Richards, 155 S.W.2d 597 (Tex. 1941); Mitchell v. Cornwall, 314 S.W.2d 437 (Tex. Civ. App.—El Paso – 1958); Jones v. State, 277 S.W.171 (Tex. Civ. App.—San Antonio—1925. In Ward v. State, 523 S.W.2d 681 (Tex. Cr. App. 1975), this court held that Id. The 103rd District Court served Willacy and Cameron Counties. Id. 145 Mata v. State, 669 S.W.2d 119 (Tex. Crim. App. 1984). 146 Id. at 120. 147 Id. 143 144

each district court has criminal jurisdiction. Cf. Zamora v. State, 508 S.W.2d 819 (Tex. Cr. App. 1974). Thus, while the Legislature may create a district court and by statute provide it shall have only civil jurisdiction, it cannot legally deprive the court of criminal jurisdiction given by the State Constitution and vice versa.148 Another significant Court of Criminal Appeals case is Gallagher v. State which considered the jurisdiction of Harris County Criminal Court at Law No. 1. 149 David Gallagher was convicted of the Class-A-misdemeanor offense of official oppression in that court.150 On appeal, Mr. Gallagher argued that the trial court was without jurisdiction.151 Specifically, he contended that under Article V, Section 8 of the Texas Constitution, only district courts could hear official oppression cases. 152 In other words, Mr. Gallagher argued that the Constitution gave district courts exclusive jurisdiction over such cases.153 The Court of Criminal Appeals agreed that the Constitution trumped any authority giving jurisdiction to the county court at law: We accordingly hold that the offense charged against the appellant is within the ambit of the phrase “official misconduct” as that term is used in Article V, § 8 of the Texas Constitution and Article 4.05, V.A.C.C.P. The said County Criminal Court at Law No. 1 was without jurisdiction to try the instant case.154

Id. at 121 (one internal source omitted). Gallagher v. State, 690 S.W.2d 587 (Tex. Crim. App. 1985). 150 Id. at 587-89. 151 Id. 152 Id. 153 This provision was subsequently changed. The new provision went into effect November 5, 1985. See Tex. Const. art. V, § 8. 154 Gallagher v. State, 690 S.W.2d at 594 (internal citation omitted). 148 149

Just as the Legislature cannot deprive district courts of their constitutionally granted jurisdiction, the Legislature cannot deprive constitutional county courts of their constitutionally-granted jurisdiction. In Lord v. Clayton, the Supreme Court said that if legislative acts deprive courts “of their constitutional criminal jurisdiction those acts are unconstitutional and void.” 155 In State ex. rel. Rector v. McClelland, 156 our Supreme Court considered the constitutionality of an act creating the Probate Court of Harris County. 157

The act gave the probate court concurrent jurisdiction with the

constitutional county court over probate cases.158

The statute was allegedly

unconstitutional because Article V, Sections 15 and 16 “vest[ed] exclusive jurisdiction in probate matters in the County Court of Harris County.159 But the Supreme Court could find no constitutional provision giving the constitutional county court exclusive jurisdiction as had been alleged.160 Accordingly, the Supreme Court held the grant of jurisdiction to the probate court was valid. 161 As David Brooks notes, this was because “[t]he constitutional probate jurisdiction of the district court and county court was held not to be exclusive, which would [have] prevent[ed] the legislature from creating a court to share this jurisdiction.”162

See Lord v. Clayton, 352 S.W.2d 718, 722 (Tex. 1961). State ex. Rel. Rector v. McClelland, 224 S.W.2d 706 (Tex. 1949). 157 Id. at 708. 158 Id. 159 Id. at 709. 160 Id. at 710. 161 Id. 162 Brooks at 330. 155 156

In Conger v. Dalrymple, 163 the appellants argued that Tarrant County Court at Law No. 2 lacked subject-matter jurisdiction to foreclose liens on real estate.164 The Court of Appeals agreed. David Brooks wrote: “[t]he court held that these actions were exclusively within the jurisdictional province of the district court.”165 Therefore, “the legislature was without authority to vest such jurisdiction in a statutory county court.” 166 As the foregoing authorities show, challenges to the constitutionality of jurisdictional statutes have been entertained on numerous occasions. Many times, statutes giving jurisdiction to certain courts have conflicted with constitutional grants of exclusive jurisdiction to other courts. The current case involves statutory grants of criminal misdemeanor jurisdiction to statutory county courts. These grants of jurisdiction conflict with the combination of constitutional and statutory provisions giving constitutional county courts exclusive jurisdiction over these same misdemeanors. Accordingly, the statutes purporting to give statutory county courts criminal misdemeanor jurisdiction violate the Texas Constitution. V. Dailing’s statutory-construction argument Even if the statutory-county-court statutes are not unconstitutional, Ms. Dailing maintained that her argument should not fail. She advanced a completely separate

Conger v. Dalrymple, 608 S.W.2d 808 (Tex. Civ. App.—Fort Worth 1980, no writ). Id. at 809. 165 Brooks at 333-34. 166 Id. 163 164

argument contending that the constitutional-county-court statute prevails over the statutory-county-court statutes. This argument is based on the rules of statutory construction and case law and it’s actually the stronger of the two arguments. There is ample legal authority for the proposition that statutes granting exclusive jurisdiction prevail over statutes granting general jurisdiction. Of course, the constitutional-countycourt statute contains a grant of exclusive jurisdiction. The statutory-county-court statutes do not. A. The statutes are in pari materia and can be harmonized. Section 26.045 of the Government Code gives exclusive jurisdiction of most misdemeanors to constitutional county courts. This is the constitutional-county-court statute. Sections 25.0003 and 25.1033 of the same code give Harris County’s criminal courts at law the same jurisdiction as the constitutional county court. These two statutes are the statutory-county-court statutes. If statutory county courts have jurisdiction of cases over which constitutional county courts exercise exclusive jurisdiction, then constitutional county courts no longer have exclusive jurisdiction. Thus, the statutory county court statutes clearly conflict with the constitutional county court statute. The question before us concerns how this conflict should be resolved. To resolve the conflict, we use the rules of statutory construction.

Legislative enactments involving the same general subject matter are considered to be in pari materia.167 Our Court of Criminal Appeals said: Statutes that deal with the same general subject, have the same common or general purpose, or relate to the same person or thing or class of persons or things are considered in pari materia, though they contain no reference to one another, and though they were passed at different times or at different sessions of the Legislature.168 Section 26.045 concerns the same subject as the statutory-county-court jurisdictional statutes – namely, the subject-matter jurisdiction of county-level courts. Therefore, these three statutes (Sections 26.045, 25.0003 and 25.1033) are in pari materia. The Court of Criminal Appeals has declared “the primary rule” of statutory construction to be as follows: Statutes in pari materia are to be taken, read and construed together, and effort should be made to harmonize, if possible so that they can stand together and have concurrent efficacy.169 Statutes can be harmonized even when they conflict – so long as the statutes are not in “irreconcilable conflict.”170 An irreconcilable conflict exists when it is impossible to comply with the two competing statutory provisions at the same time.171

Tex. Att’y Gen. Op. No. GA-0369 (2005). Brown v. State, 716 S.W.2d 939, 949 (Tex. Crim. App. 1986) (italics added). 169 Davis v. State, 968 S.W.2d 368, 372 (Tex. Crim. App. 1998). 170 See Tex. Att’y Gen. Op. No. GA-0369 (2005) at 4. 171 Tex. Att’y Gen. Op. No. GA-1035 (2014) at 2. 167 168

Here, the two statutes can be harmonized.172 The statutory county court statutes grant jurisdiction to statutory county courts over all cases of which constitutional county courts have jurisdiction. But this general jurisdictional grant is not to be read in isolation. The statutory county court statutes are in pari materia with the constitutional county court statute. Thus, the statutory county court statutes must be read together with the constitutional county court statute. When read together, the general statutory county court jurisdictional grant must yield to an exception – the exclusive grant of misdemeanor jurisdiction to constitutional county courts. In essence, the statutes, when taken together, read something like this: A statutory county court has jurisdiction over all causes and proceedings, civil and criminal, original and appellate, prescribed by law for county courts except for criminal cases over which the constitutional county court has exclusive jurisdiction. Under the foregoing harmonization, statutory county courts still have jurisdiction of civil cases over which constitutional county courts are given jurisdiction. And the provision giving constitutional county courts exclusive jurisdiction of most criminal misdemeanors is also given effect. Because the statutes can be harmonized, there is no need to resort to “tiebreakers” to determine which statute controls. 173 The

See Young v. State, 14 S.W.3d 748, 752 (Tex. Crim. App. (2000) (two statutes capable of being harmonized when both can be given effect). 173 See id. (“Only if the two provisions are irreconcilable will the amendment with the later date prevail over the earlier.”). Comparing the dates of enactment of conflicting statutes is a common tiebreaker. The statute latest in enactment controls. See also H & C Communications, Inc. v. Reed’s Food Int’l, Inc., 887 S.W.2d 475, 478 (Tex. App.—San Antonio 1994, no pet.) (two provisions “would first have to be 172

conflict between the two statutes is not irreconcilable – i.e., it is not impossible to give effect to both statutes at the same time. B. General jurisdictional grants must yield to exclusive jurisdictional grants. Carroll v. Carroll, 174 involved a grant of exclusive jurisdiction to a court by statute. Johnny Carroll challenged the Hill County Court at Law’s jurisdiction over a suit seeking a trustee’s removal.175 Our Supreme Court held the county court at law was without jurisdiction: Because the Texas Property Code vests exclusive jurisdiction over the claims in this case in the district court, we hold that the county court at law had no jurisdiction to grant the relief sought and the judgment it rendered was void. . . . Neither section 25.1112 nor section 25.0003 provide a statutory county court with concurrent jurisdiction when another court is vested with exclusive jurisdiction.176 Another relevant Texas Supreme Court case – Continental Coffee Prods. Co. v. Cazarez177 – also involved a statute that allegedly gave a court exclusive jurisdiction. The appellants argued that Harris County’s Civil Court at Law No. 3 lacked subject-matter jurisdiction over retaliatory discharge cases. 178 They cited a statute saying “a district

irreconcilable before one of them would take precedence under” tiebreaker statute based on date of enactment). 174 Carroll v. Carroll, 304 S.W.3d 366 (Tex. 2010). 175 Id. at 367. 176 Id. at 366, 368. Section 25.0003 of the Government Code is the general statute giving statutory county courts the same jurisdiction as constitutional county courts. Section 25.1112 is a specific grant of authority to the Hill County Court at Law. 177 Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444 (Tex. 1996). 178 Id. at 447. 71

court may restrain . . . a violation of [Labor Code] Section 451.001.” 179 They contended this language “confer[red] exclusive jurisdiction upon the district courts to hear retaliatory discharge cases.”180 The Supreme Court said the statute’s “plain meeting [did] not express an intention to grant exclusive jurisdiction to district courts.” 181 Accordingly, the Supreme Court held that Harris County Civil Court at Law No. 3 did have jurisdiction. 182 Had the Court found the statute gave district courts exclusive jurisdiction, the result would have been different. The 14th Court of Appeals (the appellate court hearing the Dailing case) had some 16 years earlier issued a particularly relevant opinion involving competing statutes. That case was Taub v. Aquila Southwest Pipeline Corp. 183 Specifically, the Court of Appeals considered Government Code, Section 25.1032(c) which then read: A county civil court at law has exclusive jurisdiction in Harris County of eminent domain proceedings, both statutory and inverse, regardless of the amount in controversy.” 184

Id. The statute was Tex. Lab. Code Ann. § 451.001. Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d at 447. 181 Id. (emphasis in original). 182 Id. at 448. 183 Taub v. Aquila Southwest Pipeline. Inc., 93 S.W.3d 451 (Tex. App.—Houston [14th Dist.] 2002, no pet.) . 184 The statute has since been reworded, but still gives exclusive jurisdiction to county civil courts at law in Harris County. Tex. Gov’t Code Ann. § 25.1032(c). 179

180

The Court concluded that in light of the foregoing language, “the Harris County Civil Court at Law had exclusive jurisdiction over [a] condemnation action.”185 Accordingly, “the district court did not have jurisdiction.” The Court said: The general grant of concurrent jurisdiction in Property Code Section 21.001 and the general grant of ancillary jurisdiction in Property Code section 21.003 must yield to the specific grant of “exclusive jurisdiction” over “eminent domain proceedings, both statutory and inverse,” found in Texas Government Code section 25.1032(c). 186 In Lazarus v. Swafford, the Fort Worth Court of Appeals analyzed a constitutional provision giving constitutional county courts exclusive jurisdiction in certain cases. 187 The specific cases were civil cases in which the amount in controversy exceeded $200 but did not exceed $500.188 This provision conflicted with another constitutional provision giving district courts jurisdiction to issue injunctions.189 At issue was the district court’s power to order an injunction in a case over which the constitutional county court had exclusive jurisdiction. The Court of Appeals said: The language of the Constitution above quoted, where the amount in controversy is between $200 and $500, as in this case, excludes the jurisdiction of any other than the county court in both mandamus and injunction cases. It certainly could not have been the intention of the framers of the amendment to make the jurisdiction of the county and district courts concurrent in such cases. That would be inconsistent with the whole tenor of the judiciary article, and particularly of section 16, which defines so accurately the extent of both of the exclusive and Taub v. Aquila Southwest Pipeline. Inc., 93 S.W.3d at 456. Id. at 457 (emphasis added). 187 Lazarus v. Swafford, 39 S.W. 389 (Tex. Civ. App.—Fort Worth 1897). 188 Id. 189 Id. A conflict between constitutional provisions presents a situation equivalent to a conflict between statutes. 185 186

concurrent jurisdiction of the county court. . . . Our conclusion, therefore, is that, as the amount in controversy is now made the test of the county court’s jurisdiction in all cases alike, where that amount exceeds $200 and does not exceed $500 the jurisdiction of the county court is exclusive, notwithstanding the general power conferred upon district courts to issue writs of injunction and mandamus. 190 As the foregoing cases demonstrate, general grants of jurisdiction often conflict with grants of exclusive jurisdiction. But the conflicts are not irreconcilable. The conflicts can be reconciled by giving precedence to the grants of exclusive jurisdiction. Consider Carrol v. Carrol. The statutes giving the Hill County Court at Law general jurisdiction included cases involving the removal of a trustee. But the district court had been given exclusive jurisdiction over such cases. So the general grant of jurisdiction bestowed upon the county court at law had to yield to the district court’s exclusive jurisdiction. But the provision giving the county court at law general jurisdiction was not rendered inoperable. The statutory county court still had jurisdiction in cases within its general jurisdictional grant that did not conflict with exclusive jurisdictional grants to other courts. VI. The Dailing opinion In a published opinion, the Fourteenth Court of Appeals rejected both of Ms. Dailing’s arguments. 191

190 191

Id. (emphasis added). Dailing v. State, 546 S.W.3d 438 (Tex. App.—Houston [14th Dist.] 2018, no pet.). 74

First, the Court of Appeals addressed Ms. Dailing’s constitutional argument. The Court did a good job of summarizing Ms. Dailing’s position: Appellant argues that the combined effect of article V, section 16 of the Texas Constitution and section 26.045 is a constitutional grant to the constitutional county courts over Most Misdemeanors. According to appellant, because article V, section 16 of the Texas Constitution and section 26.045 combine to provide a constitutional grant of exclusive original jurisdiction over Most Misdemeanors, any statute purporting to divest the constitutional grant of exclusive jurisdiction violates the constitution. 192 But ultimately the Court of Appeals rejected Ms. Dailing’s reasoning: Even if, under the proper construction of all statutes relating to the jurisdiction of the constitutional county courts, these courts have exclusive jurisdiction over Most Misdemeanors, this jurisdiction would be prescribed by statute, not by the Texas Constitution. Appellant has not cited any authority holding that when the Legislature acts under the authority vested in the Texas Constitution, the legislation attains constitutional status. We have found no authority supporting this proposition. Further, it would undermine the people’s constitutional grant of authority to the Legislature to promulgate statutes if statutes promulgated under constitutional authority gained constitutional status. If statutes governing jurisdiction became imbued with constitutional authority, then the Legislature could not revise statutes governing jurisdiction without a constitutional amendment.193 Second, the Court of Appeals addressed Ms. Dailing’s statutory-construction argument. This is the stronger of the two arguments and the Court had a little more trouble rejecting it.

192 193

Id. at 446. Id. at 446-47. 75

The Court of Appeals correctly recognized that the issue advanced by Ms. Dailing was one of first impression.194 The Court then recognized the conflict between the jurisdictional statute for constitutional county courts 195 and the two jurisdictional statutes for the Harris County’s statutory courts.196 The Court said: Section 26.045 provides that the constitutional county court has exclusive jurisdiction over Most Misdemeanors. Section 25.0003 provides that a statutory county court has jurisdiction over all causes and proceedings . . . prescribed by law for [constitutional] county courts. Section 25.1033 provides that county criminal courts in Harris County have the criminal jurisdiction provided by law for constitutional county courts.197 The Court of Appeals acknowledged that “if possible, [it] should construe the statutes to give effect to each of them.” 198 And the Court then recognized that Ms. Dailing had offered a way in which the statutes could be reconciled: Appellant asserts that these statutes can be harmonized by construing section 26.045(a) to give constitutional county courts exclusive original jurisdiction over Most Misdemeanors and by construing section 25.0003(a) to give statutory county courts the same jurisdiction as constitutional county courts over civil and criminal proceedings, except that the statutory county courts have no original jurisdiction over Most Misdemeanors. 199 But the Court of Appeals rejected this proposed harmonization, saying: Under appellant’s proposed statutory interpretation, statutory county courts would lack jurisdiction over Most Misdemeanors, but this Id. at 449. The statute is Section 126.045 of the Government Code. 196 The two statutes are Section 25.0003 and Section 25.1033 of the Government Code. 197 Dailing v. State, 546 S.W.3d at 450 (internal citations omitted) (brackets in original). 198 Id. 199 Id. 194 195

interpretation would render meaningless the unambiguous text is section 25.1033 and in section 25.0003, under which statutory county courts have the same original criminal jurisdiction as constitutional county courts, We conclude that we cannot construe the statutes to give effect to each. Section 26.045 and section 25.0003 irreconcilably conflict, and section 26.045 and section 25.1033 irreconcilably conflict. Because the statutes governing the trial court’s subject matter jurisdiction clash and cannot be reconciled, we must determine which statutes prevail.200 The Court’s conclusion that the statutes are irreconcilable is suspect. Despite its declaration that, “if possible,” conflicting statutes should be reconciled, the Court was overly quick to conclude that the statutes irreconcilably conflicted. But it was necessary for the Court to reach this conclusion in order to move on to a discussion of which statute controlled. Ms. Dailing had contended, of course, that the statutes could be reconciled. But she further argued that in the event that the statutes could not be reconciled, Section 26.045 should prevail. This was because a statute granting exclusive jurisdiction should prevail over a statute granting general jurisdiction. As explained earlier, she cited the cases of Carroll v. Carroll and Taub v. Aquila Southwest Pipeline as support for her argument. The Court of Appeals said Carroll was “not on point because the jurisdictional statutes in that case differ materially from the statutes in today’s case.”201 The Court did “not

Id. The Court used the capitalized term “Most Misdemeanors” as a shorthand for the specific description of misdemeanors in Section 26.045(a). 201 Id. at 451. The Court did not explain exactly what the material difference was. 200

read the Carroll opinion as standing for the proposition that a statute granting exclusive jurisdiction prevails over all other conflicting statutes.”202 Similarly, the Court discounted the Taub case, saying: The statute granting exclusive jurisdiction prevailed in Taub—not because the statute granted exclusive jurisdiction, but because the statute was the later-enacted, and more specific statute.203 But one must ask why the statute granting exclusive jurisdiction in Taub was considered to be the more specific statute. And this is what the Taub Court had to say about that: The general grant of concurrent jurisdiction in Property Code section 21.001 and the general grant of ancillary jurisdiction in Property Code section 21.003 must yield to the specific grant of “exclusive jurisdiction” over “eminent domain proceedings, both statutory and inverse,” found in Texas Government Code section 25.1032(c). Similarly, the general grant of authority to transfer cases found in Texas Government Code 74.121(b)(1), which requires the transferee court to have subject matter jurisdiction, must yield to the specific grant of “exclusive jurisdiction” over “eminent domain proceedings, both statutory and inverse,” found in Texas Government Code section 25.1032(c). 204 The Dailing Court tried to distinguish the statute giving exclusive jurisdiction to constitutional county courts (Section 26.045) from the exclusive-jurisdictional statute in Taub: The statutory scheme governing constitutional county courts and statutory courts differs because the statute granting exclusive jurisdiction Id. Id. 204 Taub v. Aquila Southwest Pipeline, 93 S.W.3d at 457 and n. 9. 202 203

is not a “special” or more specific statute as in Taub. Section 26.045 gives a general grant of jurisdiction over Most Misdemeanors to constitutional county courts. Section 25.0003 references the constitutional county courts and gives statutory county courts the same criminal jurisdiction as the constitutional county courts. In the cases appellant cites, in which a statute granted general jurisdiction over a broad set of cases and a separate statute granted exclusive jurisdiction to a subset of those cases, the holdings did not turn on the statutory language granting a court exclusive jurisdiction; instead, the statute that happened to grant a particular court exclusive jurisdiction over a subset of cases governed because it was the more specific statute and the exception to the rule that the more specific statute prevails did not apply. See Tex. Gov’t Code Ann. § 311.026 (West, Westlaw through 2017 1st C.S.); Mayo, 4 S.W.3d at 11 (stating that, if the statutes irreconcilably conflict and one statute is a general provision and the other is more specific, the specific statute prevails as an exception to the general provision, unless (1) the Legislature enacted the general provision later than the specific statute; and (2) the Legislature manifestly intended that the general provision prevail).205 The underlined language is the key. The Dailing Court says that, somehow, the statute giving constitutional county courts exclusive jurisdiction (Section 26.045) is not the more specific statute. In regard to the conflict between Section 26.045 and Section 25.0003, the Court said: Neither section 26.045 nor section 25.0003 is the more specific statute. 206 No real support for this conclusion was offered. And the conclusion certainly runs counter to Taub.

205 206

Id. at 451 (emphasis added). Id. 79

As far as the conflict between Section 26.045 and Section 25.1033 goes, the Court said: Chapter 25 of the Government Code provides broad rules governing statutory county courts at law. Unlike Chapter 26, Chapter 25 does contain a provision specifically addressing Harris County. Section 25.1033 discusses the jurisdictional breakdown of the statutory county courts in Harris County and provides that “a county criminal court at law in Harris County has the criminal jurisdiction provided by law for county courts . . . . Because section 25.1033 is a local, more specific provision, and section 26.045 is not, we must apply section 25.1033 unless (1) the Legislature enacted section 26.045 after section 25.1033; and (2) the Legislature manifestly intended that section 26.045 prevail over section 25.1033. The Legislature enacted section 25.1033 in 1987, two years after enacting section 26.045. Nothing in section 26.045 suggests that the legislature manifestly intended that section 26.045 should prevail over section 25.1033. Therefore, we conclude that section 25.1033, as the more specific statute, prevails over section 26.045. In the alternative, we conclude that even if section 25.1033 were not the more specific statute, that statute would still prevail over section 26.045 because the Legislature enacted section 25.1033 two years after it enacted section 26.045. We conclude that section 25.1033 prevails over section 26.045. Thus, under section 25.1033, a county criminal court at law in Harris County has original jurisdiction over most Misdemeanors, including driving-while-intoxicated cases. And, the trial court had jurisdiction over appellant’s case. We overrule appellant’s first issue.207 The Court of Appeals decided to write the word “exclusive” out of Section 26.045. But in so doing, the Court left the door wide open for creative arguments in other counties.

207

Id. at 452 (internal citations omitted). 80

VII. Creative arguments in other counties The Dailing opinion ultimately hinged on Section 25.1033. This is the statute that specifically addresses statutory criminal courts in Harris County.

The general-

jurisdictional statute giving criminal jurisdiction to statutory courts (Section 25.0003) is not the statute that defeated Ms. Dailing’s argument. What this means is that the Dailing opinion is limited to Harris County. Dailing opens the door for someone to make this argument in counties other than Harris County. Consider a county with a statutory county court that handles criminal cases. If there is no statute in Chapter 25 giving that statutory county criminal jurisdiction, then the reasoning in Dailing would not apply. Bell County, Bexar County, Collin County, Tom Green County, Travis County, and Victoria County fall into this category. Dallas County, El Paso County, Jefferson County, and Tarrant County deserve special mention. There are criminal district courts in each of these counties. This means Section 26.045(a) which gives constitutional county courts exclusive jurisdiction over most misdemeanors does not apply.208 The constitutional county courts in these four counties have no criminal jurisdiction at all. And because the constitutional county courts have no criminal jurisdiction, the statutory county courts in these counties have no jurisdiction. This is because the jurisdiction of the statutory county courts in these

208

See text accompanying Footnotes 118-125. 81

counties piggybacks on the jurisdiction of the constitutional county courts. There is simply nothing on which to piggyback. More fertile ground exists in counties in which the constitutional county court has been statutorily deprived of criminal jurisdiction. If the county court has no jurisdiction, then there is nothing on which the statutory county courts can piggyback. These counties are Aransas, Bastrop, Bexar, Bowie, Cameron, Denton, Grayson, Hidalgo, Lubbock, Nacogdoches, Nueces, Reeves, Taylor, Travis, Walker, Waller, Washington, and Webb. The point is there are quite a number of counties in which strong challenges can be made to the criminal jurisdiction of statutory county courts. VIII. State v. Tiscareno The Dailing case was decided by the Fourteenth Court of Appeals. After Dailing was published, the same argument was advanced in the First Court of Appeals. The case was Tiscareno v. State.209 The appellant’s briefing in Tiscareno focused on the perceived shortcomings in the Dailing Court’s reasoning. For example, Mr. Tiscareno made this argument: The Dailing Court said Section 26.045 could be given no effect. But to reach its ultimate conclusion that the trial court had jurisdiction, the Court necessarily had to give effect to Section 26.045. . . . If Section 26.045 irreconcilably conflicts with Section 25.1033, and if Section 25.1033 truly prevails over Section 26.045, then Section 26.045 would be a dead letter. 209

Tiscareno v. State, 608 S.W.3d 434 (Tex. App.—Houston [1st Dist.] 2020, pet. ref’d). 82

But Dailing did not treat Section 26.045 as being dead. Rather, the Dailing Court treated Section 26.045 as being very much alive. If Section 26.045 were dead, then Section 25.1033 would have no life either. The jurisdiction of the county criminal court at law in Harris County Criminal is wholly dependent on the constitutional county court having jurisdiction. It is imperative that the constitutional county court have jurisdiction for county criminal courts at law in Harris County to have any jurisdiction at all. In reality, the Dailing Court did not find that Section 26.045 irreconcilably conflicted with Section 25.1033. The Dailing Court actually did give effect to both statutes – despite saying it could not do so. 210 The First Court of Appeals never addressed this argument.211 Rather, the Tiscareno Court simply recited the reasoning of the Dailing Court. Tiscareno offered no new analysis in any respect. The reason for mentioning Tiscareno in this paper is to reveal that there are actually two appellate opinions on this issue. Also, the briefing in Tiscareno tries to point out the weaknesses in the Dailing opinion.

Brief for Appellant in Tiscareno v. State at 74-75 (internal citations omitted). Nor did the Tiscareno Court address any of the other points made about the shortcomings in the Dailing opinion. For example, the Tiscareno Court addressed the constitutional argument in Dailing in a two-sentence footnote: We note that appellant also argues that because Texas Government Code sections 25.0003(a) and 25.1033(a) conflict with section 26.045(a), they violate the Texas Constitution. Our sister appellate court in Dailing addressed and refuted this argument. See Dailing, 546 S.W.3d at 446-48. 210 211

CONCLUSION This paper addresses four systemic arguments that have been tried in the First and Fourteenth Courts of Appeals. All four of the systemic arguments have been rejected. But one never knows whether other intermediate courts of appeals will reach the same conclusions if they are presented with the same arguments. Some of these arguments may be worth trying in other areas of Texas.

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Court of Criminal Appeals P.O. Box 12308 Austin, TX 78744 (512) 463-1570

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Dec. 2021

Acknowledgement So, my law clerk is responsible for this paper. She overcame great adversity to bring this to you. My research attorney came onboard after she was hired and left before Christmas. Still, she persevered. All while also trying to draft opinions and do the work of two attorneys. But what do you expect from someone who graduated at the top of her class at Baylor Law? Anything smart comes from her. Any commentary comes from me. Don’t blame her, she could not stop me.

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Dec. 2021

Table of Contents I.

INTRODUCTION ..............................................................................................................................................................1

II.

MOTIONS TO SUPRESS..................................................................................................................................................1 A.

SEARCH WARRANTS - MISREPRESENTATIONS IN A WARRANT AFFIDAVIT THAT REFERENCED A CONFIDENTIAL DEA

INFORMANT AS AN “ANONYMOUS TIPSTER” WERE ULTIMATELY NOT MATERIAL SO THERE WAS NO VIOLATION OF FRANKS V.

DELAWARE..............................................................................................................................................................................1 CONFESSIONS - DEFENDANT’S SECOND STATEMENT WAS NOT PROPERLY “WARNED AND WAIVED” AS REQUIRED BY ARTICLE 38.22 BECAUSE THAT STATEMENT WAS SURREPTITIOUSLY RECORDED WITHOUT ANY REFERENCE TO EARLIER STATUTORY WARNINGS. ......................................................................................................................................................... 2

III.

TRIAL PROCEDURE .......................................................................................................................................................3

JURISDICTION AND AUTHORITY .............................................................................................................................................3 1. County courts share jurisdiction over official-misconduct misdemeanors with district courts unless a statute applicable to that county excludes such offenses from that county court’s jurisdiction. ..................................................3 2. Attorney General lacks authority to independently prosecute criminal cases in trial courts; Election Code § 273.021, which purported to grant the Attorney General the unilateral power to prosecute election-law violations, violates the separation of powers clause. ............................................................................................................................................3 3. A trial court has 30 days of plenary jurisdiction to dismiss an indictment after discharging a defendant from community supervision pursuant to Article 42A.701(f) of the Code of Criminal Procedure............................................4 B. STATUTE OF LIMITATIONS - STATUTE OF LIMITATIONS IN POSSESSION OF A CONTROLLED SUBSTANCE CASE WAS NOT TOLLED BY THE PENDENCY OF AN INITIAL INDICTMENT WHEN THE SUBSEQUENT INDICTMENT ALLEGED A DIFFERENT DRUG AND CHARGED BOTH POSSESSION AND ATTEMPTED POSSESSION BY ALL OF THE POSSIBLE STATUTORY MANNERS AND MEANS. .................................................................................................................................................................................. 5

WAIVER OF JURY TRIAL - A DEFENDANT MAY WITHDRAW HIS WAIVER OF A JURY TRIAL THAT WAS EXECUTED IN

ANTICIPATION OF A NEGOTIATED PLEA THAT WAS NEVER FINALIZED. .................................................................................... 6

D. E.

SPEEDY TRIAL - A FOUR-MONTH DELAY DID NOT VIOLATE DEFENDANT’S RIGHT TO A SPEEDY TRIAL IN A MISDEMEANOR

CASE. ..................................................................................................................................................................................... 7

DOUBLE JEOPARDY................................................................................................................................................................8 Convictions and sentences for two counts of driving while intoxicated with a child passenger, which arose from the same driving incident but alleged a different child, violated the Double Jeopardy Clause. ............................................8 2. Defendant’s convictions for continuous sexual abuse of a child and prohibited sexual conduct for acts committed against a single victim in the same time frame did not violate the Double Jeopardy Clause...........................................9 F. COLLATERAL ESTOPPEL DID NOT BAR A SUBSEQUENT PROSECUTION FOR RECKLESS AGGRAVATED ASSAULT CAUSING 1.

BODILY INJURY TO A DRIVER OF A VEHICLE AFTER A JURY FOUND THE DEFENDANT NOT GUILTY OF MANSLAUGHTER AND FOUND THAT HE WAS NOT RECKLESS IN CAUSING THE COLLISION WHICH LED TO THE DEATH OF THE VEHICLE’S PASSENGER. .

............................................................................................................................................................................................ 10

IV. A.

C. D.

EVIDENCE ....................................................................................................................................................................... 10 RELEVANCE – EXTRANEOUS OFFENSE EVIDENCE THAT A KIDNAPPED VICTIM WAS LATER MURDERED WAS RELEVANT AND ADMISSIBLE IN DEFENDANT’S CAPITAL MURDER TRIAL FOR THE KILLING OF A DIFFERENT VICTIM, IN WHICH THE AGGRAVATING ELEMENT WAS KIDNAPPING. ........................................................................................................................ 10 CONFRONTATION CLAUSE - ADMISSION OF EXPERT TESTIMONY REGARDING A DNA-COMPARISON ANALYSIS DID NOT VIOLATE THE CONFRONTATION CLAUSE WHERE THE ANALYSIS WAS BASED ON COMPUTER-GENERATED DATA FROM THE EXPERT’S LAB AND DATA FROM ANOTHER INDEPENDENT LAB. ............................................................................................ 11 HEARSAY - TO PRESERVE A HEARSAY OBJECTION UNDER TEXAS RULE OF EVIDENCE 803(6)(D), A DEFENDANT NEED NOT SPECIFICALLY OBJECT THAT A WITNESS IS NEITHER A PROPER CUSTODIAN NOR ANOTHER QUALIFIED WITNESS. ................. 12 “RAPE SHIELD” RULE — THE COURT OF APPEALS SHOULD HAVE REMANDED THE CASE TO THE TRIAL COURT TO REMEDY TRIAL COURT’S EXCLUSION OF THE STATE, DEFENSE COUNSEL, AND THE DEFENDANT FROM RULE 412 HEARING. .............. 13

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Dec. 2021 E.

CONFIDENTIAL INFORMANTS – DISMISSAL OF CAPITAL MURDER CHARGE ON THE DEFENDANT’S MOTION WAS PROPER UNDER RULE 508 BECAUSE THE STATE REFUSED TO DISCLOSE THE IDENTITY OF A CONFIDENTIAL INFORMANT AND THERE WAS A REASONABLE PROBABILITY THAT THE INFORMANT COULD GIVE TESTIMONY NECESSARY TO A FAIR DETERMINATION OF GUILT OR INNOCENCE. ..................................................................................................................................................... 14

OFFENSES ....................................................................................................................................................................... 15 A.

POSSESSION OF PENALTY GROUP 4 CONTROLLED SUBSTANCE — DEFENDANT COULD NOT BE CONVICTED OF POSSESSION OF EITHER PENALTY GROUP 1 OR PENALTY GROUP 4 CODEINE WHERE THE EVIDENCE FAILED TO PROVE THE PROPORTION OF THE CODEINE MIXTURE, AS REQUIRED UNDER PENALTY GROUP 4, BUT ALSO DID NOT ESTABLISH THAT THE SUBSTANCE POSSESSED WAS CODEINE NOT LISTED IN PENALTY GROUP 3 OR 4, AS REQUIRED UNDER PENALTY GROUP 1. ..................... 15 AGGRAVATED ASSAULT - DEFENDANT’S STATEMENT, “I NEED TO HIT” CONSTITUTED A VERBAL THREAT AND PROVIDED SUFFICIENT EVIDENCE OF THE THREAT ELEMENT OF THE CHARGED AGGRAVATED ASSAULT. .............................................. 16 DRIVING WHILE INTOXICATED - THE STATE’S FAILURE TO READ A 0.15 ALLEGATION INCLUDED IN A CHARGING

B. C.

INSTRUMENT UNTIL THE PUNISHMENT STAGE OF TRIAL DID NOT CONSTITUTE AN INTENTIONAL ABANDONMENT OF THE ALLEGATION OR A FAILURE TO JOIN ISSUE, NOR WAS ANY ERROR HARMFUL. ....................................................................... 17 FAMILY VIOLENCE - TESTIMONY THAT A VICTIM REFERRED TO THE DEFENDANT AS HER BOYFRIEND WAS SUFFICIENT TO PROVE THE EXISTENCE OF A DATING RELATIONSHIP UNDER TEXAS FAMILY CODE § 71.0021(B) DESPITE THE ABSENCE OF THE STATEMENT ON THE BODY CAMERA FOOTAGE............................................................................................................... 19 UNLAWFUL CARRYING OF A WEAPON - TO OBTAIN A CONVICTION FOR THE UNLAWFUL CARRYING OF A WEAPON BY A MEMBER OF A CRIMINAL STREET GANG, THE STATE MUST PROVE THAT THE DEFENDANT WAS CONTINUOUSLY OR REGULARLY COMMITTING GANG CRIMES. ............................................................................................................................ 20

VI.

JURY INSTRUCTIONS .................................................................................................................................................. 21

DEFENSIVE INSTRUCTIONS................................................................................................................................................... 21 1. Defendant who equivocated in his testimony about whether he committed the charged conduct satisfied the confession-and-avoidance doctrine. Marvin Rodriguez was tailgating with his brothers, Candido and Javier, in the parking lot of Cowboys Stadium. .................................................................................................................................... 21 2. Defendant was entitled to jury instruction on necessity based on her testimony that, while she was intoxicated, she attempted to move the vehicle off the road, notwithstanding her denial that she was operating the vehicle. ................ 22 B. LESSER-INCLUDED INSTRUCTIONS ....................................................................................................................................... 23 1. Defendant entitled to a jury instruction on the lesser-included offense of deadly conduct in aggravated assault with a vehicle case based on his testimony that he “must have” dozed off or passed out prior to accident. ............................ 23 2. A defendant charged with aggravated sexual assault was not entitled to a jury instruction on indecency with a child by contact because it was not a lesser-included offense of the charged crime.................................................................... 24 3. Defendant who was charged with capital murder committed in the course of a robbery was not entitled to a jury instruction on the lesser-included offense of robbery because no evidence negated conspiracy liability. ..................... 25 C. EGREGIOUS HARM - DEFENDANT WAS NOT EGREGIOUSLY HARMED BY ERRONEOUS SELF-DEFENSE INSTRUCTIONS WHEN HE WAS NOT ENTITLED TO DEADLY FORCE SELF-DEFENSE INSTRUCTIONS IN THE FIRST PLACE.................................................. 26 D. PUNISHMENT-PHASE JURY CHARGE THAT FAILED TO PROPERLY TRACK THE LANGUAGE OF THE HABITUAL-OFFENDER STATUTE AMOUNTED TO JURY-CHARGE ERROR SUBJECT TO A HARM ANALYSIS, NOT AN ILLEGAL SENTENCE. ..................... 26 VII. SENTENCING ...................................................................................................................................................................... 27 A.

DEATH PENALTY ................................................................................................................................................................. 27 Mandatory sentence of life without the possibility of parole after the State waived the death penalty was not unconstitutional as applied to an intellectually-disabled defendant convicted of capital murder. ................................ 27 2. Evidence that a capital defendant would pose a continuing threat to society, whether in or out of prison, was sufficient to support jury’s affirmative finding on the future-dangerousness special issue. .......................................................... 28 B. STACKING - OFFENSES WERE PROSECUTED IN THE SAME CRIMINAL TRANSACTION, SUCH THAT THE SENTENCES COULD NOT BE STACKED, WHERE THE DEFENDANT WAS ADJUDICATED GUILTY OF THREE OFFENSES, PLEAD GUILTY TO TWO ADDITIONAL OFFENSES, AND WAS SENTENCED FOR ALL FIVE SIMULTANEOUSLY. ..................................................................................... 30 1.

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Dec. 2021 C.

ENHANCEMENTS - AN AGGRAVATED STATE-JAIL FELONY MAY BE ENHANCED UNDER THE HABITUAL-OFFENDER STATUTE.... ............................................................................................................................................................................................ 30

VIII.

APPEALS .......................................................................................................................................................................... 31

PRETRIAL WRITS - COURT OF APPEALS SHOULD HAVE ADDRESSED COGNIZABILITY AS A THRESHOLD ISSUE BEFORE REACHING THE MERITS OF CLAIM. ........................................................................................................................................ 31 HARM - ANY ERROR IN ADMITTING POLICE REPORT REGARDING AN EXTRANEOUS OFFENSE OVER DEFENDANT’S OBJECTION WAS HARMLESS. ................................................................................................................................................................... 31

B. IX.

HABEAS CORPUS .......................................................................................................................................................... 32

FALSE EVIDENCE - COURT REMANDED PETITION FOR WRIT OF HABEAS COURT FOR THE HABEAS COURT TO FULLY DEVELOP ALL THE APPLICANT’S CLAIMS. ............................................................................................................................................ 32 ILLEGAL SENTENCES - APPLICANT WHO HAD BEEN AUTOMATICALLY SENTENCED TO LIFE IMPRISONMENT BASED ON AN ENHANCEMENT WAS ENTITLED TO BE RESENTENCED WHERE THE COURT HAD VACATED THE PREDICATE ENHANCING CONVICTION. ........................................................................................................................................................................ 33

FEDERAL LAW .............................................................................................................................................................. 34 A.

§ 1983 CLAIMS .................................................................................................................................................................... 34 A police officer did not violate clearly established law and was not made ineligible for qualified immunity by briefly placing his knee on a defendant’s back. ......................................................................................................................... 34 Cortesluna later sued under 42 U.S.C. § 1983, alleging that Rivas-Villegas used excessive force. .............................. 34 2. Officers, who shot and killed a defendant after he raised and attempted to throw a hammer at them, did not violate clearly established law on excessive force and were eligible for qualified immunity. ................................................... 34 1.

iii

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Dec. 2021

SCOTUS/CCA Update

informant told a DEA agent that Jessie had committed the home invasion and gave him Jessie’s phone numbers, an agent ran the numbers on his own initiative and connected them to Diaz, and another agent called police to share the information. The trial court denied Diaz’s motion to suppress, concluding that the misrepresentations were not material. At trial, the State introduced the challenged evidence. The jury found Diaz guilty of burglary of a habitation.

Significant Decisions from September 2021 to December 2021 I.

INTRODUCTION

This paper covers the published opinions issued by the Court of Criminal Appeals between September 1, 2021, and December 31, 2021. It also includes the significant criminal cases from the United States Supreme Court that have broad applicability, issued between September 1, 2021, and December 31, 2021. However, we continue to update the paper as the respective court terms roll on. If you would like a copy of the complete paper at the end of the respective terms, please email me through Nichole Reedy at nichole.reedy@txcourts.gov and we’ll do our best to get you a copy this summer. Because that’s when the respective terms end. Not because we are sitting around or anything. Nichole is very busy you know.

On appeal, Diaz argued that the trial court erred by not suppressing the evidence because the misrepresentations in the search warrant affidavit constituted a violation of Franks v. Delaware, 438 U.S. 154 (1978). The court of appeals affirmed the trial court’s suppression rulings. The court held that Diaz had not shown a Franks violation because the misrepresentation of the confidential informant as an anonymous source was not material, and the crucial information was true and corroborated by the DEA agents.

II. MOTIONS TO SUPRESS A. Search Warrants - Misrepresentations in a warrant affidavit that referenced a confidential DEA informant as an “anonymous tipster” were ultimately not material so there was no violation of Franks v. Delaware. Nelson Garcia Diaz and another individual broke into a Houston police officer’s house and shot the officer in the leg. Four days later, Diaz was arrested on unrelated warrants, and police seized three cell phones that were in Diaz’s possession. Diaz was subsequently charged with burglary of a habitation. Four years after Diaz’s arrest, law enforcement obtained a search warrant for the phones. According to the affidavit for the search warrant, police got an anonymous tip that “Jessie” was involved in the home invasion, the tipster gave two phone numbers for Jessie, police asked a federal agent to run the phone numbers through Drug Enforcement Agency databases, and that check showed that one of the numbers belonged to Diaz. Diaz filed a pretrial motion to suppress the evidence obtained through the search warrant. At the suppression hearing, the trial court heard testimony that, contrary to the representations in the affidavit, the anonymous tipster was actually a confidential informant for the DEA, the confidential 1

The Court of Criminal Appeals affirmed. Diaz v. State, 632 S.W.3d 889 (Tex. Crim. App. Oct. 27, 2021) (9:0:0). Writing for a unanimous Court, Judge Keel explained that the misrepresentations were not material, and one of the disputed statements was not proven to be false, so there was no violation of Franks v. Delaware, 438 U.S. 154 (1978). A criminal defendant may challenge the truthfulness of factual statements made in a search warrant affidavit under Franks by showing that a material misstatement was made intentionally, knowingly, or with reckless disregard for the truth. A false statement is material if it is necessary to the finding of probable cause. The Court has assumed that Franks applies to material omissions, but it has not decided the issue. First, the mischaracterization of the confidential informant as an anonymous tipster was not material because the reliability of an anonymous tipster is evaluated the same way as a confidential informant. Thus, referring to the source as anonymous and failing to label him as a confidential informant did not enhance his credibility, make his information more reliable, or lower the standard for evaluating probable cause. The misrepresentation that the police had asked the DEA to run the phone numbers, when in reality the DEA agent ran the phone numbers on his own, was also not material because specifying who prompted the phone-

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Dec. 2021

from a totality of the circumstances and consideration of the factors articulated in Bible v. State, 162 S.W.3d 234, 242 (Tex. Crim. App. 2005). After applying the Bible factors, the court of appeals concluded that the in-car statement was not a continuation of the first. Because there was no Miranda warning before the second interview, the court of appeals held that the trial court was correct to exclude it.

number check was not necessary for the probable cause finding. Finally, Diaz had neither claimed nor proven to be false the representation that police reached out to the DEA initially. Because the disputed statements in the affidavit were not material, and one was not proven false, Diaz had failed to show a Franks violation. B. Confessions - Defendant’s second statement was not properly “warned and waived” as required by Article 38.22 because that statement was surreptitiously recorded without any reference to earlier statutory warnings. El Paso police arrested Erlinda Lujan in connection with their investigation into the murder of Anthony Trejo. While in custody, Lujan gave three recorded statements. The first statement was recorded in an interrogation room at the police station. After being warned of her Miranda rights, Lujan told detectives that two men had killed Trejo. Though she denied participation in the killing, Lujan admitted to going with the men to dispose of Trejo’s body. The second statement was recorded on an iPad during the car ride the detectives and Lujan took for the purpose of locating where Trejo’s body was dumped. The detectives did not warn Lujan of her Miranda rights, nor did they inform Lujan that she was being recorded. Lujan’s third statement was made after Lujan and the detectives returned from the car ride. Like the first, the third statement was recorded at the police station. During the third recording, detectives re-introduced themselves, explained that the interview “was a continuation of our interview that we had taken before,” reminded Lujan that she was still at the police station and under arrest, and once again read Lujan her Miranda rights. Lujan filed a motion to suppress all three statements. The trial court suppressed the second and third statements. With respect to the second statement, the trial court made the following findings: (1) Lujan was misled into believing the in-car statement would not be used against her, and (2) the second, in-car statement was not a continuation of the first statement. The court of appeals upheld the trial court’s suppression of the second, in-car statement, but it reversed the suppression of the third statement. Because Lujan had not been warned before the second statement, the issue was whether the second statement was a continuation of the first. Whether one interview is a continuation of an earlier interview is determined

The Court of Criminal Appeals affirmed. State v. Lujan, --- S.W.3d ---, 2021 WL 4185974 (Tex. Crim. App. Sept. 15, 2021) (5:2:3). Writing for the Court, Judge Keel explained that the trial court’s finding that Lujan was misled into believing the in-car statement would not be used against her was dispositive of the statement’s admissibility because it meant that the incar statement was not “warned and waived” as required by Article 38.22 Section 3 of the Texas Code of Criminal Procedure. After reviewing the record, the Court concluded that the trial court’s finding was supported by a most-favorable view of the evidence. The Court noted four specific circumstances that supported the trial court’s finding: (1) the differences in formality between the in-room statements and the incar statement; (2) the detectives had insisted on taking the car ride, not Lujan; (3) at the end of the first interview, one of the detectives told Lujan, “when we come back, we can continue if you like,” which suggested a difference between the first interrogation and what would follow in the car; and (4) leaving the interrogation room suggested that the official interrogation was suspended in the car, and the goal of the car ride—to look for the body—disguised the confessional aspect of the trip. Because Lujan’s second statement was not properly warned and waived, it was not admissible, and the four Bible factors were therefore irrelevant.

Judge Newell filed a concurring opinion. Judge Newell explained that this case highlighted the problems with Bible v. State, namely that it is unclear whether Bible focuses on the voluntariness of the statement, the issue of whether the second statement was a continuation of the first, or the effectiveness of a reference to warnings in an earlier statement upon a defendant’s decision to make a later statement. If Bible’s focus was voluntariness or the continuation issue, Judge Newell believed Bible’s balancing-offactors test to be unnecessary. Alternately, if the

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Dec. 2021

The Court of Criminal Appeals reversed. Roland v. State, 631 S.W.3d 125 (Tex. Crim. App. Sept. 29, 2021) (9:0:0). Writing for a unanimous Court, Presiding Judge Keller concluded that some county courts at law do have concurrent jurisdiction over misdemeanors involving official misconduct. Before 1985, the Texas Constitution contained a specific provision giving district courts jurisdiction over misdemeanors involving official misconduct. Following a constitutional amendment, however, the Texas Constitution no longer has a such a specific provision. Instead, it broadly provides that district courts have exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, and “other laws”, such as statutes, may confer any of these three types of jurisdiction on a court. Based on the current statutory scheme, county courts share concurrent jurisdiction over official-misconduct misdemeanors with district courts, unless a statute applicable to that county excludes official-misconduct misdemeanors from a county court’s jurisdiction. Because the statute applicable to Fort Bend County does not contain such an exclusion, the Fort Bend County Court at Law had jurisdiction over this officialmisconduct misdemeanor.

concern of Bible was whether statutory warnings given in a second statement are a “fully effective equivalent” of statutory warnings given in the first, then this case was easily distinguishable from Bible because there was no reference to the warnings at all in the second interview. Judge Yeary filed a concurring opinion. Judge Yeary read Article 38.22 to contain the plain requirement that a separate warning be given for each discrete recording that is made. Because this case involved multiple recordings, and the second recording did not contain its own separate warnings, it was within the trial court’s discretion to declare the in-car recording inadmissible. Presiding Judge Keller filed a dissenting opinion, joined by Judge McClure. Presiding Judge Keller believed the case should be resolved under Bible. Presiding Judge Keller would conclude that, under a Bible analysis, the in-car questioning was part of the same interrogation as the prior questioning at the police station. [Commentary: To understand this opinion and the side opinions you really need to read the Court’s opinion in Bible v. State, 162 S.W.3d 234, 242 (Tex. Crim. App. 2005). The holding in Bible worked in that case, but a majority of the Court was skeptical that its reasoning could apply to surreptitious recordings of defendants as occurred in this case. See for yourself and make up your own mind.]

2. Attorney General lacks authority to independently prosecute criminal cases in trial courts; Election Code § 273.021, which purported to grant the Attorney General the unilateral power to prosecute election-law violations, violates the separation of powers clause. Zena Collins Stephens was elected Jefferson County Sheriff. During an unrelated investigation, the FBI discovered potential campaign-finance violations concerning Stephens. The FBI turned this information over to the Texas Rangers, who concluded that Stephens received individual cash campaign contributions exceeding $100. The Jefferson County District Attorney declined to prosecute and instead referred the Texas Rangers to the Attorney General. Relying on Texas Election Code § 273.021, the Attorney General’s Office presented the case to a grand jury in a neighboring county, and the grand jury returned an indictment. The indictment charged Stephens with one count of tampering with a government record in violation of Texas Penal Code § 37.10 and two counts of unlawfully making or accepting a contribution in violation of Texas Election

III. TRIAL PROCEDURE A. Jurisdiction and Authority 1. County courts share jurisdiction over official-misconduct misdemeanors with district courts unless a statute applicable to that county excludes such offenses from that county court’s jurisdiction. Jerrod P. Roland pled no contest to official oppression, a Class A misdemeanor, in a county court at law in Fort Bend County. Roland argued on appeal that the county court at law lacked jurisdiction. The court of appeals agreed and held that the county court at law had no jurisdiction over the case because district courts and criminal district courts have exclusive jurisdiction over misdemeanors involving official misconduct. 3

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Dec. 2021

enumerations of duties preceding the “other duties” phrase were limited to civil powers that were not of the same character as the power to represent the state in a criminal prosecution, which was already granted to county and district attorneys. Because the “other duties” clause said nothing about the governmental branch from which those duties may derive, the Court concluded that the Attorney General’s “other duties” must be executive branch duties. The Court further noted that Art. IV, § 22 stated that the Attorney General shall perform such other duties “as may be required by law,” and nothing in Texas Election Code § 273.021 required the Attorney General to initiate prosecution for an election code violation. Instead, the statute only used the permissive “may.” While there could be an overlap of constitutional duties between the Attorney General and county and district attorneys, any such concurrent jurisdiction was permissible only if exercised at the request of a district or county attorney and on a case-by-case basis. Absent a request for assistance by a district or county attorney, the Attorney General has no authority to independently prosecute criminal cases in trial courts. Accordingly, the grant of prosecutorial authority in Texas Election Code § 273.021 violated the separation of powers doctrine of the Texas Constitution.

Code § 253.033(a) by accepting cash contributions in excess of $100 from two different individuals. Stephens filed a motion to quash the indictment, arguing the Attorney General did not have authority to prosecute a violation of the Penal Code, and an application for a pretrial writ of habeas corpus, challenging the constitutionality of Texas Election Code § 273.021. The trial court granted the motion to quash Count I of the indictment, but it denied the motion to quash the remaining counts and the pretrial habeas corpus writ. Both Stephens and the Attorney General appealed. The Attorney General argued that the trial court erred to quash Count I because Texas Election Code § 273.021(a) authorizes the Attorney General to prosecute violations of election laws, which was not confined to laws found within the Election Code. Stephens argued that the trial court erred by denying her application for a pretrial habeas corpus writ because Texas Election Code § 273.021(a) violated the separation of powers doctrine in the Texas Constitution. The First Court of Appeals agreed with the Attorney General and held that Texas Election Code § 273.021(a) gave the Attorney General power to prosecute election law violations both inside and outside the Election Code. The Court of Criminal Appeals reversed. State v. Stephens, --- S.W.3d ---, 2021 WL 5917198 (Tex. Crim. App. Dec. 15, 2021) (8:0:1). Writing for the Court, Judge McClure explained that the Texas Legislature could not delegate to the Attorney General, a member of the executive department, the prosecution of election-law violations in district and inferior courts because that was a power more properly assigned to the judicial department. The separation-of-powers provision in the Texas Constitution prohibits one branch of government from exercising any power properly attached to either of the other branches unless that power is expressly grounded in a constitutional provision. Article IV, § 22 of the Texas Constitution enumerates the duties of the office of the Attorney General and ends with the phrase “and perform such other duties as may be required by law.” In the view of the Attorney General and the court of appeals, this phrase provided the requisite express permission for the legislature to confer prosecutorial power on the Attorney General under Texas Election Code § 273.021. The Court disagreed, noting that the specific

Judge Yeary filed a dissenting opinion. In Judge Yeary’s view, the catch-all provision—“and perform such other duties as may be required by law”— constituted express language permitting the Legislature to authorize the Attorney General’s exercise of a judicial power. Because he would find that Texas Election Code § 273.021 was therefore constitutional, Judge Yeary would also hold that the court of appeals correctly held that the Attorney General could exercise its discretion under the statute to prosecute Stephens under its theory of tampering with a governmental record. [Commentary: A motion for rehearing has been filed in this case. Perhaps you have heard of it. Or perhaps you have heard of other people’s representations of the Court’s holding. I urge you to read both the Court’s holding and the dissent to make an informed decision. Other than that, I cannot say much else.] 3. A trial court has 30 days of plenary jurisdiction to dismiss an indictment after 4

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Dec. 2021

discharging a defendant from community supervision pursuant to Article 42A.701(f) of the Code of Criminal Procedure. Lakesia Keyon Brent was convicted of Class B misdemeanor theft. The trial court assessed her punishment at six months in jail but suspended the sentence and placed her on community supervision for one year. After one year, the trial court entered an order terminating community supervision. On the form order, the trial court selected the reasons for discharge being that the period had expired and that Brent was discharged by operation of law. The form also contained an option for the trial court to order the verdict set aside, charging instrument dismissed, and the defendant discharged. More than two years after she was discharged, Brent moved the trial court to enter an order granting judicial clemency. Over the State’s objection, the trial court concluded it had jurisdiction based on policy considerations and the lack of an express time limit in the statute.

statutes in other ways. This inaction suggested that the Legislature implicitly approved of the majority view. Subsection (f) of Texas Code of Criminal Procedure Article 42A.701 gives trial courts the option to grant judicial clemency when discharging a defendant from community supervision “under this article.” Read in conjunction with the other subsections, the phrase “under this article” means that discharge depends on a defendant’s time and performance under supervision. Contrary to the court of appeals’ conclusion, the Court found that discharge and clemency are not separate forms of relief because clemency could not be granted without discharging the defendant from supervision. The Court further disagreed with the court of appeals’ reliance on Cuellar. Cuellar did not say that the purpose of judicial clemency was to grant a special form of relief to defendants who have been ‘completely rehabilitated, as the court of appeals found. Rather, Cuellar recognized that judicial clemency was conditioned on a trial judge’s belief that a person on community supervision is completely rehabilitated. Even if complete rehabilitation was the purpose of judicial clemency, that purpose still would not give a trial court perpetual jurisdiction.

The court of appeals affirmed, reasoning that discharge from supervision was a precondition for judicial clemency, so discharge marked the beginning of a trial court’s authority to grant clemency. However, the court of appeals agreed that the statute said nothing about when the trial court’s authority expired. Relying on Cuellar v. State, 70 S.W.3d 818 (Tex. Crim. App. 2002), the court explained that the purpose of judicial clemency was “to grant a special form of relief to defendants who have been completely rehabilitated.” Accordingly, the court of appeals held that, based on the text and purpose of the statute, Article 42A.701 of the Texas Code of Criminal Procedure gave trial courts the discretionary power to grant judicial clemency at any time after a defendant is discharged from community supervision under the article. The Court of Criminal Appeals reversed. State v. Brent, --- S.W.3d ---, 2021 WL 4891126 (Tex. Crim. App. Oct. 25, 2021) (8:1:0). Writing for the Court, Judge Keel explained that, in the absence of any other source of jurisdiction, a trial court’s power to grant judicial clemency is limited to its 30-day plenary power. The Court noted that every other court of appeals to address this question had reached this conclusion. Since those decisions, the Legislature has not taken any action to correct that interpretation, although it has amended the community supervision

Judge Yeary filed a concurring opinion. In the opinion, Judge Yeary expressed his concern that judicial clemency violated the separation-of-powers mandate of the Texas Constitution. In Judge Yeary’s view, the court of appeals’ interpretation would amplify the risk that the statute would be struck down as unconstitutional, which provided another reason to interpret the statute as the Court did.

B. Statute of Limitations - Statute of limitations in possession of a controlled substance case was not tolled by the pendency of an initial indictment when the subsequent indictment alleged a different drug and charged both possession and attempted possession by all of the possible statutory manners and means. Timothy Mark West was first charged with three counts of knowingly possessing or attempting to obtain the drug Tramadol by misrepresentation, fraud, forgery, deception, or subterfuge on three separate dates. The charged offense had a three-year statute of limitations. Three years to the day after the last alleged offense, the State refiled the indictment against West, containing the same allegations word-for-word except that the alleged

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Dec. 2021

indictments in this case did not contain enough specific facts to make it clear that the indictments involved the same act, conduct, or transaction, and the State’s amendments to the indictment could have had an effect on West’s defensive theory. The Court concluded that, under a notice-focused Hernandez inquiry as informed by Marks, the notice provided by the Tramadolalleging prior indictment failed to give West the adequate notice necessary to preserve facts essential to defending against the Oxycodone-alleging subsequent indictment. Therefore, the prior indictment did not toll the statute of limitations, and the trial court did not err by granting West’s motion to quash.

drug was changed from Tramadol to Oxycodone. The trial court granted the State’s motion to dismiss the original indictment. The trial court then granted West’s motion to quash the second indictment because it lacked tolling paragraphs. More than three years after the alleged offenses, the State filed a third indictment containing the same allegations but also including tolling paragraphs as to each count. The trial court granted West’s motion to quash the third indictment. The State appealed, and the court of appeals reversed the trial court’s ruling granting the motion to quash. The court of appeals concluded that, although the drugs alleged were different, both indictments employed the same language mirroring the statute, and therefore the statute of limitations was tolled.

Judge Yeary filed a dissenting opinion. Judge Yeary would find that this case was like Hernandez because the indictments were identical but for the two different controlled substances they alleged. Further, Judge Yeary would apply the language of Article 12.05(b) at face-value and hold that the statute of limitations is tolled during the pendency of any indictment, information, or complaint against the defendant.

The Court of Criminal Appeals reversed. State v. West, 632 S.W.3d 908 (Tex. Crim. App. Oct. 27, 2021) (6:0:3). Writing for the Court, Judge Walker explained that the original indictment could not toll the statute of limitations for the subsequent indictment because the indictments could have alleged different conduct, acts, or transactions. In Hernandez v. State, 127 S.W.3d 768, 772 (Tex. Crim. App. 2004), the Court held that a prior indictment, which charged the defendant with possession of amphetamine, tolled the statute of limitations against a subsequent indictment, which charged the defendant with possession of methamphetamine, because both indictments alleged the same conduct—possession of a controlled substance—and the names methamphetamine and amphetamine both referred to the same controlled substance found on the defendant. However, unlike in Hernandez, the statute involved in this case could be violated in several different ways, and the indictments alleged nearly all those ways a defendant could have committed the offense. Because the allegations involved in this case allowed for separate and discrete conduct, acts, or transactions, it was not clear that the two indictments addressed the same event. Further, the original indictment failed to give West adequate notice necessary to preserve facts essential to defending against the subsequent indictment. Both Hernandez and the Court’s later opinion in Marks v. State, 560 S.W.3d 169, 171 (Tex. Crim. App. 2018) reflect a concern that a defendant receive proper notice in order to prepare a defense. As was the case in Marks, the

Judge Hervey and Judge Slaughter dissented without written opinion. C. Waiver of Jury Trial - A defendant may withdraw his waiver of a jury trial that was executed in anticipation of a negotiated plea that was never finalized. Jose Cesar Sanchez executed a waiver of his right to a jury trial in anticipation of entering a negotiated guilty plea at a hearing later that day. After executing the waiver, however, Sanchez expressed some hesitancy about pleading guilty. At the beginning of the hearing, Sanchez explained that he signed the waiver but did not know that he would lose his right to have a jury. His trial counsel assured the trial court that he had adequately explained the waiver to Sanchez in Spanish but had not translated the waiver verbatim. The State gave Sanchez until 5:00 p.m. to accept the offered plea agreement. At the end of the plea hearing, the trial court clarified that, if Sanchez declined the offer, the parties would proceed to a bench trial based on the waiver. Sanchez ultimately elected not to accept the State’s offer. On the date the case had been previously scheduled for a jury trial, the court granted the State’s motion to amend the date range alleged in the indictment, and Sanchez exercised his 6

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Dec. 2021

relevant date, the Court concluded that the trial court and court of appeals erred by considering resets that had occurred before that hearing because those resets were unrelated to Sanchez’s withdrawal request. Similarly, any delays following the plea hearing were also not relevant to determining whether the trial court abused its discretion by refusing to allow Sanchez to withdraw his waiver on the date of that hearing. Sanchez had requested to withdraw the waiver mere hours after he executed it. Had the trial court granted his request to withdraw the waiver at the hearing, the withdrawal would have caused no more disruption to court business, delay in the proceedings, or inconvenience to witnesses than there would have been had Sanchez not waived the right in the first place. Turning to the remaining Hobbs factors, the Court concluded that any inconvenience to the complaining witness and consequent prejudice to the State was caused by Sanchez’s decision not to accept the State’s plea offer, not Sanchez’s request to withdraw his jurytrial waiver. The only consequence of allowing Sanchez to withdraw the waiver would have been that the complaining witness would have testified in a jury trial rather than a bench trial. Based on the circumstances, any inconvenience to the witness and prejudice to the State caused by this difference would have been minimal.

statutory right to a ten-day period to respond to the indictment. The trial court subsequently issued an order scheduling the case for a bench trial. Five days before the bench trial setting, Sanchez filed a motion asking the court to return his case to the jury-trial docket. Before the bench trial began, Sanchez formally requested the trial court to allow him to withdraw his waiver of jury trial. The State refused to consent, and the trial court denied Sanchez’s motion. On appeal, Sanchez argued that the trial court abused its discretion by failing to permit him to withdraw his waiver of his right to a jury trial. The court of appeals concluded that Sanchez could not establish that the trial court abused its discretion because he failed to show that (1) the “absence of adverse consequences” to the State from the restoration of his jury-trial right, (2) withdrawal of his waiver would not interfere with the orderly administration of the court’s business, and (3) reinstatement of his right to a jury trial would not result in unnecessary delay or inconvenience to witnesses. The Court of Criminal Appeals reversed. Sanchez v. State, 630 S.W.3d 88 (Tex. Crim. App. Sept. 22, 2021) (7:1:1). Writing for the Court, Judge Yeary explained that the trial court had abused its discretion by refusing to allow Sanchez to withdraw his jury-trial waiver. To withdraw a valid jury-trial waiver, a defendant must show that granting his request will not: (1) interfere with the orderly administration of the business of the trial court; (2) result in unnecessary delay or inconvenience to witnesses; or (3) prejudice the State. Hobbs v. State, 298 S.W.3d 193, 197 (Tex. Crim. App. 2009). Since the Hobbs standard only applies to valid waivers, the threshold question was whether Sanchez validly waived his right to a jury trial. The Court noted that Sanchez’s waiver was arguably invalid because it was not made in open court as required by Article 1.13(a) of the Texas Code of Criminal Procedure. However, the Court assumed, without deciding, that a jury-trial waiver was valid under the Hobbs standard if it satisfied federal constitutional criteria for validity, meaning that the record shows it was made expressly, knowingly, and intelligently. Assuming that Sanchez’s waiver was valid, the Court concluded that Sanchez had satisfied the Hobbs factors. First, the Court found that Sanchez effectively requested to withdraw his waiver on the date of the original plea hearing. Based on that

Judge Hervey concurred in the result. Presiding Judge Keller dissented without written opinion. D. Speedy Trial - A four-month delay did not violate defendant’s right to a speedy trial in a misdemeanor case and any further delay due to competency evaluations of the defendant could not be assessed against the State. Martin Rivera Lopez was arrested for the felony offense of causing bodily injury to an elderly person. After Lopez had been in custody 75 days, he was notified that he would be entitled to a personal recognizance bond or reduced bail if the State was not ready for trial within 90 days. Five days before the 90-day deadline, the State dismissed the felony charge and instead filed an information for a Class A misdemeanor assault. Lopez thereafter appeared at two hearings, though a complete record exists for neither hearing. At the first hearing, the issue of Lopez’s competency was apparently raised. 7

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against the State. Rather, the State had simply exercised its discretion and filed what it deemed to be the most appropriate charge based on the evidence it had collected. The third factor, which looks at a defendant’s assertion of the right to a speedy trial, likewise weighed in favor of the State. Although Lopez had requested a speedy trial in this case, his counsel at the same time conceded that Lopez was incompetent, which would hinder or possibly even prevent the possibility of a trial. Further, Lopez requested the case be dismissed only after the State announced ready for trial. Typically, filing for dismissal weakens a speedy-trial claim because it suggests a desire to have no trial instead of speedy one.

A visiting judge ordered that he be evaluated but did not stay the proceedings consistent with Article 46B.004(d) of the Texas Code of Criminal Procedure. At a second hearing, Lopez, who was still in custody and whose competency had apparently not yet been evaluated, asserted his right to a speedy trial and requested the charges be dismissed. After the hearing, Lopez filed a motion for speedy trial. The trial court granted Lopez’s speedy trial motion but did not rule on the request for dismissal. Both the State and Lopez’s counsel announced ready for trial but noted their concerns about Lopez’s competency. After asking Lopez if he was competent and receiving an affirmative response, the trial court announced that it was granting the speedy trial motion and dismissing the case. The court of appeals affirmed the trial court’s dismissal on speedy trial grounds based on the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972): (1) the length of the delay, (2) the reasons for delay, (3) the assertion of the right, and (4) the prejudice suffered by the defendant.

Judge Yeary and Judge Keel concurred in the result. [Commentary: This case is particularly confusing because it seems more like a competency case. But rather than consider the competency issue, the trial court understandably seems to have tried to sidestep competency for a clean holding regarding a speedy trial. Unfortunately, the road less taken makes all the difference.]

The Court of Criminal Appeals reversed. State v. Lopez, 631 S.W.3d 107 (Tex. Crim. App. Sept. 29, 2021) (7:2:0). Writing for the Court, Judge Richardson explained that the limited record showed that Lopez was incarcerated for 112 days, but otherwise contained no support for the trial court’s implied finding that the delay violated Lopez’s constitutional right to a speedy trial. Based on the Court’s analysis of the first three Barker factors, the Court concluded that the delay did not violate Lopez’s constitutional right to a speedy trial. With respect to the first factor, the length of the delay, the Court reasoned that Lopez’s pretrial incarceration of 112 days was not an extraordinary amount of time under Barker v. Wingo. Further, any potential future delays due to Lopez’s incompetency and the necessity of a competency evaluation would not have been the State’s fault and should not have been considered. Since this length of time was not presumptively prejudicial, it was insufficient to trigger an analysis of the remaining Barker factors. But, even if the Court had found that first Barker factor had been triggered, the Court nonetheless would have concluded that the trial court erred. With respect to the second factor, the reasons for the delay, the Court noted that the 112-day delay was not a bad-faith delay on the part of the State, which meant that it weighed less heavily

Double Jeopardy

1. Convictions and sentences for two counts of driving while intoxicated with a child passenger, which arose from the same driving incident but alleged a different child, violated the Double Jeopardy Clause. Jason Jermaine Cook pled guilty to two counts of driving while intoxicated with a child passenger under 15 years of age in violation of Texas Penal Code § 49.045. Both counts arose from the same driving incident, with each count alleging a different child. Cook filed a pro se application for a writ of habeas corpus alleging that conviction on both counts violated double jeopardy. The habeas court agreed and recommended the Court of Criminal Appeals vacate the second count. The Court of Criminal Appeals vacated the judgment of conviction for count two. Ex parte Cook, 630 S.W.3d 65 (Tex. Crim. App. Sept. 15, 2021) (9:0:0). Writing for a unanimous Court, Presiding Judge Keller explained that the proper unit of prosecution under the statute was each act of driving, not each child occupant. The offense at issue had both 8

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indictment, required evidence of at least two acts of sexual abuse, perpetrated over the course of at least thirty days, against a child younger than 14 years of age, while prohibited sexual conduct required proof that the victim was Ramos’s stepchild, which would not have to be a child under 14. Therefore, the presumption was that the two offenses were not the same for multiple-punishment double-jeopardy purposes.

a nature of conduct element (driving while intoxicated) and a circumstance surrounding the conduct element (the presence of a child under age 15). A circumstance element can prescribe the gravamen of the offense if it criminalizes otherwise innocent conduct, but the circumstance element at issue here merely aggravated otherwise criminal conduct. The aggravating element did not affect the unit of prosecution. Because the focus of the offense was the act of driving while intoxicated, each incident of driving described the unit of prosecution for the offense, not the presence of each child.

However, the Blockburger presumption is rebuttable. In deciding whether the presumption has been overcome, courts consider the eight factors enumerated in Ervin v. State, 991 S.W.2d 804, 814 (Tex. Crim. App. 1999). The first Ervin factor— whether the offense’s provisions are contained within the same statutory section—supported the Blockburger presumption because the two offenses appeared in separate titles of the Penal Code. The second factor— whether the offenses are phrased in the alternative— was inapplicable because the statutes appeared in separate sections of the Code. Contrary to the court of appeals’ determination, the Court concluded that the third factor—whether the offenses are named similarly—did not weigh against the Blockburger presumption. The court of appeals found that the offenses were similar because both shared the word “sexual” in their names, but the Court reasoned that the fact that the offenses were contained in distinctly named chapters and titles of the Code led to the conclusion that the offenses were not similarly named, even though they shared a common word. Ervin’s fourth factor—whether the offenses have common punishment ranges—further supported the Blockburger presumption because the two offenses carried widely different punishment ranges. Ervin’s fifth and sixth factors—whether the offenses have a common focus and whether that common focus tends to indicate a single instance of conduct—also counseled that the offenses were not the same. Contrary to the court of appeals’ conclusion that both offenses were nature-ofconduct type of offenses, the Court determined that continuous sexual abuse had both nature-of-conduct and circumstance-surrounding-conduct components, but the gravamen of the offense was the commission of at least two of the listed offenses, and the gravamen of prohibited sexual conduct was the circumstance that the actor knows that the person with whom he is having

2. Defendant’s convictions for continuous sexual abuse of a child and prohibited sexual conduct for acts committed against a single victim in the same time frame did not violate the Double Jeopardy Clause. Enrique Angel Ramos was charged in a two-count indictment with continuous sexual abuse of a child and prohibited sexual conduct. Count 1 alleged that Ramos sexually abused the victim from August 11, 2011 through August 11, 2016 and specified one of the acts of sexual abuse as aggravated sexual assault. Count 2 alleged that Ramos engaged in sexual intercourse with the same victim, who he knew was his stepdaughter, on or about August 11, 2016. Following a jury trial, Ramos was convicted of both offenses. The Thirteenth Court of Appeals held that Ramos’s punishment for both offenses violated the Double Jeopardy Clause and vacated Ramos’s conviction for prohibited sexual conduct. The Court of Criminal Appeals reversed. Ramos v. State, --- S.W.3d ---, 2021 WL 4889096 (Tex. Crim. App. Oct. 20, 2021) (7:2:0). Writing for the Court, Judge Yeary explained that the convictions did not violate double jeopardy because each offense contained distinct elements that the other did not. The Double Jeopardy Clause protects against multiple punishments for the “same” offense. The traditional starting point for determining whether two offenses are the same is the Blockburger test, which provides that two separately defined statutory offenses are presumed not to be the same if each requires proof of an elemental fact that the other does not. Blockburger v. United States, 284 U.S. 299, 304 (1932). The Court concluded that the two offenses, as pled, each contained a distinct element that the other did not. Continuous sexual abuse of a child, as pled in the

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Dec. 2021

2021) (8:1:0). Writing for the Court, Judge Walker explained that, although both trials involved the issue of whether Rion was reckless, manslaughter and aggravated assault causing bodily injury are “result of conduct” offenses. The results—death and bodily injury—are different, and the culpable mental state of recklessness attaches to those results. By its verdict of “not guilty” in the first trial, the jury necessarily determined that Rion was not reckless and therefore was not aware of a risk of death as a result of his conduct, but the jury did not necessarily determine that Rion lacked awareness of a risk of bodily injury as a result of his conduct. Therefore, collateral estoppel did not prohibit the subsequent prosecution for reckless aggravated assault causing bodily injury.

intercourse was his stepchild. Ervin’s seventh factor— whether the elements that differ between the offenses can be considered the “same” under an imputed theory of liability which would result in the offenses being considered the same under Blockburger—also supported the Blockburger presumption because the elements that differed between the offenses were not alike. Finally, the eighth factor—whether there is legislative history containing an articulation of an intent to treat the offenses as the same or different for double jeopardy purposes—revealed no basis to conclude the two offenses were meant to be treated as the same for double jeopardy purposes. Judge Hervey and Judge Walker concurred in the result.

Judge Slaughter concurred in the result.

F. Collateral estoppel did not bar a subsequent prosecution for reckless aggravated assault causing bodily injury to a driver of a vehicle after a jury found the defendant not guilty of manslaughter and found that he was not reckless in causing the collision which led to the death of the vehicle’s passenger. Christopher Rion crashed his vehicle into another vehicle, leading to injuries to the other vehicle’s driver and the eventual death of its passenger. The State charged Rion in two separate indictments. The first charged Rion with manslaughter for the death of the passenger. The second charged Rion with aggravated assault for intentionally, knowingly, or recklessly causing bodily injury to the driver with a deadly weapon. After Rion’s motion to consolidate the two was denied, the manslaughter case proceeded first to a jury trial. The jury returned a verdict of not guilty for both manslaughter and the lesser-included offense of criminally negligent homicide. Following the acquittal, the State sought to try Rion on the aggravated assault with a deadly weapon offense. Rion filed a pretrial application for a writ of habeas corpus, which the trial court denied. The court of appeals reversed, holding that collateral estoppel applied and barred the subsequent prosecution for reckless aggravated assault because the jury in the manslaughter trial decided that Rion was not reckless in causing the collision, which would be an essential element in the aggravated assault trial.

IV. EVIDENCE A. Relevance – Extraneous offense evidence that a kidnapped victim was later murdered was relevant and admissible in defendant’s capital murder trial for the killing of a different victim, in which the aggravating element was kidnapping. Santha Inthalangsy and his girlfriend, Lindapone Phanprasa, blamed Sara Cassandra Nelson for the loss of $70,000 in drug profits. After Nelson’s attempt to compensate Inthalangsy and Phanprasa fell through, they went looking for Nelson. They eventually found Nelson and her boyfriend, Kris Maneerut, at a friend’s house. Inthalangsy and another man, Amalinh Phouthavong, entered the house, where they shot and killed Maneerut in front of Nelson. They then escorted Nelson to their car and drove off. The next morning, Nelson’s body was discovered. Inthalangsy was charged with capital murder for shooting Maneerut in the course of kidnapping Nelson. Inthalangsy filed a pretrial motion in limine to prevent the State from introducing evidence relating to Nelson’s death. The trial court denied the motion. At trial, the State presented evidence of Nelson’s death, including a photograph of Nelson’s body where it was discovered. In addition, the State elicited testimony from an assistant medical examiner, who testified that Nelson had eight or nine gunshot wounds to the head, neck, chest, back, and left wrist and had died between twelve to twenty-four hours before her body was

The Court of Criminal Appeals reversed. Ex parte Rion, 632 S.W.3d 895 (Tex. Crim. App. Oct. 27, 10

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Judge Hervey did not participate.

discovered. The jury found Inthalangsy guilty of capital murder and assessed a sentence of life imprisonment without the possibility of parole.

B. Confrontation Clause - Admission of expert testimony regarding a DNA-comparison analysis did not violate the Confrontation Clause where the analysis was based on computer-generated data from the expert’s lab and data from another independent lab. Wilber Ulises Molina was convicted of aggravated sexual assault years after the offense took place. After being kidnapped and sexually assaulted by multiple perpetrators, the victim had undergone a SANE exam. The evidence collected from the victim was outsourced to a private laboratory, called Reliagene, for genetic testing, where analysts were able to generate two DNA profiles, one of which was consistent with the victim. The source of the other DNA profile remained unidentified until Molina voluntarily gave a sample of his DNA thirteen years later. Molina’s sample was processed by Lloyd Halsell III, an analyst at the Houston Forensic Science Center. Halsell compared the DNA profile he generated from Molina’s sample to the DNA profile developed by Reliagene and concluded that the profile developed by Reliagene was likely Molina’s. Over Molina’s objection, the trial court allowed Halsell to testify at trial. During his testimony, Halsell explained the protocols and procedures used at his laboratory. Although he did not have personal knowledge of the protocols used by Reliagene, he testified that he was able to independently verify the profile developed by Reliagene by using Reliagene’s computer-generated data. The Reliagene report was not admitted as evidence during the trial. The jury found Molina guilty.

On appeal, Inthalangsy complained, among other things, about the admission of evidence relating to Nelson’s death. The court of appeals held that the trial court abused its discretion by admitting the evidence of Nelson’s murder. After finding the error harmful, the court of appeals reversed the judgment of conviction and remanded for a new trial. The Court of Criminal Appeals reversed. Inthalangsy v. State, --- S.W.3d ---, 2021 WL 5226648 (Tex. Crim. App. Nov. 10, 2021) (8:0:0). Writing for the Court, Judge McClure explained that the trial court did not abuse its discretion in admitting the evidence. The Court found that the evidence was relevant, tended to prove an element of the charged offense, and provided necessary context for the charged offense. Contrary to Inthalangsy’s characterization of Nelson’s death as an extraneous offense, the Court found that the evidence instead constituted proof of the kidnapping element, which was the aggravating feature of the capital murder charge. But, even if Nelson’s death was extraneous to the charged offense, the evidence would still have been admissible as sametransaction contextual evidence. The evidence of Nelson’s death provided necessary context to a continuing course of conduct, and, as Judge McClure explained, one could not tell the story of Nelson’s kidnapping without revealing the end of the story. The Court further concluded that the probative value of the evidence was not substantially outweighed by its prejudicial effect. The probative value of the evidence was rooted in its tendency to make it more probable that Inthalangsy kidnapped Nelson. Although there were slight risks that the evidence could emotionally impact the jury or confuse the jury that Inthalangsy was on trial for murdering Nelson instead of Maneerut, it was unlikely that the evidence would have had an irrational effect of the jury or caused the jury to make a decision on an improper basis. Further, the State did not spend an inordinate amount of time on Nelson’s death, and the evidence of Nelson’s death was not cumulative of other evidence presented. Finally, the State had a moderate need for the evidence because proof of the kidnapping depended on the logical inferences that could be drawn from the circumstances.

On appeal, Molina argued that the admission of Halsell’s testimony violated the Confrontation Clause. The court of appeals affirmed Molina’s conviction. Based on Paredes v. State, 462 S.W.3d 510 (Tex. Crim. App. 2015), the court of appeals concluded that the computer-generated DNA data was nontestimonial. The critical issue was whether Halsell performed the crucial DNA-comparison analysis, and the court of appeals found that he did. The Court of Criminal Appeals affirmed. Molina v. State, 632 S.W.3d 539 (Tex. Crim. App. Oct. 20, 2021) (9:0:0). Writing for a unanimous Court, Judge Hervey explained that the Reliagene report was non11

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the calls. The court of appeals affirmed. The court of appeals reasoned that either a custodian or another qualified witness could testify, and Bahena had not objected that the sergeant was not another qualified witness. Relying on its own precedent, Melendez v. State, 194 S.W.3d 641, 644 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d), the court of appeals held that Bahena had forfeited his argument by failing to object both that the sergeant was not a custodian of records and was not otherwise qualified.

testimonial because none of the data was inherently inculpatory or created for use against Molina. Moreover, Halsell was not merely a surrogate for the non-testifying analysts because he conducted an independent analysis of the two DNA profiles to reach his conclusion that the DNA evidence likely came from Molina. Like the court of appeals, the Court also rejected Molina’s argument that Halsell lacked personal knowledge because his testimony, like the director’s testimony in Paredes, reflected an important control in the process and showed there was likely no error in processing the evidence.

The Court of Criminal Appeals affirmed. Bahena v. State, --- S.W.3d ---, 2021 WL 5512157 (Tex. Crim. App. Nov. 24, 2021) (9:0:0). Writing for a unanimous Court, Judge McClure explained that a defendant is not required to specifically object to both prongs of Texas Rule of Evidence 803(6)(D) to obtain a merits review of his hearsay objection. A holding to the contrary would improperly place the burden on the objecting party to establish the inadmissibility of the challenged evidence. Instead, after an objection is made, it is the proponent of the evidence that has the burden to establish its admissibility. Accordingly, Bahena had not forfeited his point of error by solely objecting that the sergeant was not a custodian of records. Nonetheless, the Court held that the trial court did not abuse its discretion in overruling Bahena’s objection because the sergeant was either a custodian of records or another qualified witness who could sponsor the records. Additionally, the sergeant’s testimony established the predicate for the businessrecords exception to the hearsay rule found in Texas Rule of Evidence 803(6). Although Bahena complained on appeal that the recordings lacked trustworthiness, he had not objected at the trial court on that ground and had, therefore, failed to preserve error. Further, Bahena had not shown that the source of the information contained in the records, or the circumstances of its preparation, indicated a lack of trustworthiness.

C. Hearsay - To preserve a hearsay objection under Texas Rule of Evidence 803(6)(D), a defendant need not specifically object that a witness is neither a proper custodian of the business records nor another qualified witness. Raul Bahena was charged with aggravated robbery. At trial, the State sought to admit a disc containing recordings of phone calls from the jail into evidence. To authenticate the recordings, the State called a sergeant with the Harris County Sheriff’s Office to testify. The sergeant testified that he was the supervisor of the Tactical Intelligence Unit, which was responsible for gathering and disseminating phone calls from the jail. The sergeant further testified about the way the calls were accessed and how the calls were stored according to an inmate’s assigned number, or System Person Number (SPN), which an inmate must enter before a call can be made. The sergeant acknowledged that he did not personally compile the jail calls at issue. Rather, a deputy under the sergeant’s supervision, who was “also a custodian of records” had stored and transferred the calls to a disc. However, the sergeant explained that the calls saved to the disc had been made using Bahena’s identification numbers, although the name and SPN of a different inmate were on the disc label. He stated that he incorrectly labeled the disc with another inmate’s name, but that he subsequently checked the actual files to ensure they were Bahena’s phone calls. Bahena objected that the sergeant was not the custodian of records for the phone calls. The trial court overruled the objection and admitted the phone calls. The jury found Bahena guilty. Bahena appealed, arguing in part that the trial court abused its discretion in overruling his objection that the sergeant was not the custodian of records for

[Commentary: This is a very confusing case because it purports to address preservation but then actually addresses merits. The upshot should be that if you are attempting to introduce business records, you don’t necessarily need a “custodian” if your witness is otherwise qualified. But make sure you lay a predicate that your authenticating witness is qualified and 12

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admissibility. Accordingly, the appropriate remedy is for the court of appeals to abate the appeal and remand the case to the trial court to conduct a retrospective adversarial hearing in which the defendant has an opportunity to show that the victim’s prior sexual history is admissible. Thus, the court of appeals should not have conducted a harm analysis based on a deficient record in this case.

articulate it to the trial court so you avoid this issue entirely.] D. “Rape Shield” Rule — The court of appeals should have remanded the case to the trial court to remedy trial court’s exclusion of the State, defense counsel, and the defendant from Rule 412 hearing. Jesse Villafranco, Jr. was charged with aggravated sexual assault, attempted indecency with a child, and indecency with a child by exposure. At trial, Villafranco sought to ask the victim about a previous incident of sexual abuse by someone else to rebut medical evidence offered by the State. The trial court construed Rule 412 as requiring an in-camera hearing without the presence or participation of the defense or State. Defense counsel agreed with the trial court’s interpretation of the rule and responded, “That’s correct, Your Honor.” Defense counsel was allowed to ask the victim several questions to give the trial court guidance before the ex parte, in-camera hearing. The trial court questioned the victim outside the presence of the parties and ruled the evidence of prior sexual abuse inadmissible. The court of appeals held that the trial court should have permitted the parties to be present and the attorneys to question the victim in the Rule 412 proceeding. Assuming without deciding that the Rule 412 hearing was a critical stage of the proceeding, the court of appeals applied a harmless error test and concluded that Villafranco failed to show harm from the trial court’s error. The Court of Criminal Appeals reversed, remanded the case to the court of appeals, and ordered the court of appeals to abate the case for the trial court to hold an adversarial hearing on the admissibility of the evidence of prior sexual abuse. Villafranco v. State, --- S.W.3d ---, 2021 WL 5355194 (Tex. Crim. App. Oct. 20, 2021) (6:0:3). Writing for the Court, Judge Keel explained that the court of appeals erred by failing to follow LaPointe v. State, 225 S.W.3d 513 (Tex. Crim. App. 2007). In LaPointe, the Court held that a Rule 412 in camera proceeding is an adversarial hearing at which the defendant, defense counsel, and the State are present, and the attorneys are permitted to question the witness and present evidence. If the trial court fails to follow this procedure, and the defendant is prevented from properly litigating the admissibility of this evidence, the appellate court may lack an adequate record to evaluate the trial court’s ruling on

The Court further concluded that Villafranco had adequately preserved the error for appellate review. Because Villafranco had not objected to the trial court’s failure to follow the correct procedures, the Court had to determine whether the complaint was subject to forfeiture. The Court concluded that a Rule 412 adversarial hearing was a critical stage of trial, reasoning that the exclusion of a defendant and his counsel from the Rule 412 hearing may have permanently foreclosed the defendant’s ability to rebut medical evidence and defend on grounds that someone else caused the victim’s injury. And the right to counsel at such a critical stage of trial cannot be forfeited by inaction alone but must be affirmatively waived. Accordingly, Villafranco did not forfeit his right to counsel by failing to object. Nor did Villafranco affirmatively waive his right to counsel by agreeing with the trial court that the hearing was to be held ex parte. Presiding Judge Keller filed a dissenting opinion, joined by Judge Slaughter. Presiding Judge Keller explained that, assuming the Court was correct that Rule 412 hearing is a critical stage of trial and the right to counsel at a critical stage is a waivable-only right, the Court left unresolved whether Villafranco was actually denied counsel at a critical stage. Presiding Judge Keller would conclude that Villafranco had not been denied counsel because the denial of counsel at a critical stage must be a complete denial, and any denial of counsel was not complete in this case because Villafranco’s counsel had some participation in the Rule 412 inquiry. Given this, Presiding Judge Keller would apply the traditional rule that error must be preserved. Because Villafranco did not preserve error, Presiding Judge Keller would reject his claim. Judge Yeary dissented without written opinion.

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Dec. 2021

E. Confidential Informants – Dismissal of capital murder charge on the defendant’s motion was proper under Rule 508 because the State refused to disclose the identity of a confidential informant, and there was a reasonable probability that the informant could give testimony necessary to a fair determination of guilt or innocence. Reynaldo Lerma and several others attempted to rob Joel Espino and his roommate Andrew Alejandro. During the attempted robbery, Alejandro shot and killed Espino and wounded two of the other robbers. Lerma was charged with the capital murder of Espino. During pretrial discovery, Lerma’s defense counsel discovered that three months prior to the attempted robbery, the Hays County Narcotics Task Force used a confidential informant to conduct a controlled buy from Espino, who was a drug dealer, as was Alejandro. Defense counsel also learned that Espino had not been charged in connection with the controlled buy and that the drugs from the controlled buy had been destroyed. This information led defense counsel to suspect that Espino could have also been an informant, which could have given Alejandro a motive to intentionally kill Espino. Defense counsel requested additional information concerning the controlled buy, including the identity of the confidential informant. In response, the State asserted that the informant’s identity was privileged under Rule 508 of the Texas Rules of Evidence. The trial court ordered the State to allow defense counsel to review the informant’s file for potentially exculpatory information. The State filed a petition for mandamus, claiming that the trial court was required to first conduct an in-camera hearing under Rule 508. The court of appeals denied relief, but the parties and trial court ultimately agreed to a Rule 508 in-camera hearing. At the in-camera hearing, the task force officers testified that they had failed to document the informant’s identity. They also admitted that it was possible the informant could have potentially exculpatory information. At the end of the hearing, the trial court found that the task force officers were not credible and that there was a reasonable probability that the confidential informant could give information necessary to a fair determination of guilt or innocence.

that the task force commander, who testified at the incamera hearing that he did not know the identity of the informant, did in fact know the identity of the informant but would not disclose it. Based on the email, the trial court’s earlier finding that the officers lacked credibility, and the State’s exhaustion of all possible legal remedies, the trial court granted Lerma’s motion to dismiss. The court of appeals reversed, concluding that the trial court abused its discretion because it relied upon speculation that the informant had exculpatory information instead of evidence in the record. The Court of Criminal Appeals reversed. State v. Lerma, --- S.W.3d ---, 2021 WL 5513553 (Tex. Crim. App. Nov. 24, 2021) (5:1:3). Writing for the Court, Judge Walker explained that the trial court had not abused its discretion in granting the motion to dismiss. Because the State did not disclose the informant’s identity, the trial court was required to grant Lerma’s motion to dismiss if it found that there was a reasonable probability that the informant could give testimony necessary to a fair determination of guilt or innocence. See Texas Rule of Evidence 508. A defendant is only required to show that testimony may be necessary to a fair determination of guilt or innocence, which can be accomplished by making a plausible showing, based on evidence and not speculation, of how the informant’s information may be important. Bodin v. State, 807 S.W.2d 313, 317–18 (Tex. Crim. App. 1991). The trial court’s finding that Lerma had met his burden under Bodin was not unreasonable, arbitrary, or without reference to guiding principles. Further, the trial court’s ruling was based on evidence, not speculation. Thus, the trial court did not abuse its discretion in dismissing the case under Rule 508.

Lerma filed a motion to dismiss pursuant to Rule 508. After the motion was filed, the State disclosed an email, which pre-dated the in-camera hearing, showing 14

Presiding Judge Keller filed a dissenting opinion, joined by Judge Yeary and Judge McClure. Presiding Judge Keller pointed to four reasons that the trial court erred in granting the motion to dismiss. First, the Rule 508 exception would not apply if Espino was a confidential informant, as Lerma theorized, because Espino was dead and could not testify. Second, the confidential informant at issue was an informant for a narcotics investigation, not the capital murder investigation, and in Presiding Judge Keller’s view, the Rule 508 exception only applied if the confidential

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Dec. 2021

I can’t say for sure.” The jury found Biggers guilty of possession of a controlled substance.

informant could give necessary testimony about the case in which he served as an informant. Third, Presiding Judge Keller believed Lerma’s theory to be too speculative. Finally, Presiding Judge Keller believed that resorting to Rule 508 was unnecessary because the State already had an obligation to disclose exculpatory information pursuant to Article 39.14(h) of the Texas Code of Criminal Procedure and Brady v. Maryland, 373 U.S. 83 (1963).

On appeal, Biggers argued that the State failed to prove an element of the offense because it had not proven the level of concentration of codeine in the substances. The court of appeals agreed, holding that the statute requires more than the mere presence of promethazine. According to the court of appeals, the evidence was insufficient to establish that (1) the concentration level of the codeine was not more than 200 milligrams of codeine per 100 milliliters, and (2) the presence of promethazine was in a sufficient proportion to convey on the mixture valuable medicinal qualities other than those possessed by the codeine alone. The court of appeals further concluded that the evidence was insufficient to support a lesser-included offense because the nature of the evidence, as opposed to the amount of evidence, was insufficient. Accordingly, the court of appeals rendered a judgment of acquittal. The State filed a petition for discretionary review questioning whether acquittal was the proper remedy.

Judge Keel concurred in the result. [Commentary: Note that this case really turns on credibility determinations that are adverse to the State. Moreover, this doesn’t mean that the case is over, it just means that the State must reveal the identity of the confidential informant to proceed.] V. OFFENSES A. Possession of Penalty Group 4 Controlled Substance — Defendant could not be convicted of possession of either Penalty Group 1 or Penalty Group 4 codeine where the evidence failed to prove the proportion of the codeine mixture, as required under Penalty Group 4, but also did not establish that the substance possessed was codeine not listed in Penalty Group 3 or 4, as required under Penalty Group 1. During a narcotics investigation, police detained Darren Lamont Biggers and found in his car a Sprite bottle and Styrofoam cup filled with a purple substance referred to as “lean,” which is a common term for codeine cough syrup mixed into a beverage. The State charged Biggers with possession of a Penalty Group 4 controlled substance in an amount over 400 grams. At trial, the drug chemist testified that both the Sprite bottle and cup contained “an unspecified amount of codeine and promethazine.” The chemist had not been asked to quantify the amounts of codeine or promethazine, so she could not testify to the concentration of codeine in either sample. The chemist testified that promethazine was a non-narcotic active medicinal ingredient, but she never testified whether the combination of promethazine and codeine had valuable medicinal qualities other than those possessed by the codeine alone. When asked whether the promethazine added “something to this mixture medicinally,” the chemist responded, “It appears to, but 15

The Court of Criminal Appeals affirmed. Biggers v. State, 630 S.W.3d 74 (Tex. Crim. App. Sept. 22, 2021) (5:0:4). Writing for the majority, Judge McClure explained that the evidence was insufficient to prove that Biggers possessed Penalty 4 Group codeine. Contrary to the State’s argument, the State’s failure to prove the “valuable medicinal quality” component did not mean that the State had proven the substance was codeine “not listed in Penalty Group 3 and 4,” which would make it Penalty Group 1 codeine. The Court noted that there was no question that promethazine was present in the mixture at issue in this case. But, while the chemist did testify that promethazine was a nonnarcotic active medicinal ingredient, she failed to testify whether the codeine was combined with the promethazine in recognized therapeutic amounts or in sufficient proportion to confer on the compound valuable medicinal qualities other than those possessed by the codeine alone. Without this evidence, a rational juror could not infer that the promethazine was or was not in recognized therapeutic amounts or in sufficient proportion to confer on the compound valuable medicinal qualities other than those possessed by the codeine alone. To support a conviction for Penalty Group 1 codeine, the

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Dec. 2021

admitted into evidence. The relevant portion of the statement read as follows:

statutory scheme required the State to negate the possibility that the mixture was a Penalty Group 3 or 4 substance. Because the Court lacked proof that the substance was not a Penalty Group 4 substance, the Court could not say it was then a Penalty Group 1 substance. Accordingly, reformation of the judgment to reflect a conviction for a Penalty Group 1 offense would not be a proper remedy, and the proper remedy was a judgment of acquittal.

He grabbed my neck, started choking me so hard I couldn’t breathe, and then he grabbed a board and started hitting me so hard I told Jessie he was hurting me. So he told me I need to hit -- I believe -- so he kept hitting me with the board. Then after started hitting my fingers until they started bleeding.

Presiding Judge Keller filed a dissenting opinion. Presiding Judge Keller would affirm the conviction for possession of Penalty Group 4 codeine based on Sanchez v. State, 275 S.W.3d 901 (Tex. Crim. App. 2009). Presiding Judge Keller agreed with the majority, however, that the State could not obtain a conviction for Penalty Group 1 codeine because it had not proven the substance lacked the mitigating characteristics of Penalty Group 4 codeine.

The jury found Brooks guilty. On appeal, Brooks challenged the sufficiency of the evidence to prove the “threat” element of the offense, arguing that the State had to prove some verbal threat because the indictment had alleged a verbal threat. The court of appeals agreed that the “telling her that he was going to end her life” language in the indictment required a verbal threat of some sort and further concluded that there was no evidence of a verbal threat. In the court of appeals’ view, no rational juror could discern a threat in the statement “I need to hit.” Accordingly, the court of appeals found a material variance between the allegations in the indictment and the proof at trial, and it reversed the judgment of conviction and rendered a judgment of acquittal. The State filed a petition for discretionary review, initially arguing that a nonverbal threat from the deadly weapon alleged in the indictment sufficiently conformed to the indictment’s allegations. On its own motion, the Court of Criminal Appeals granted review of and ordered the parties to brief the issue of whether “I need to hit,” constituted a verbal threat.

Judge Slaughter filed a dissenting opinion, joined by Presiding Judge Keller, Judge Keel, and Judge Yeary. In Judge Slaughter’s view, the majority’s conclusion that the evidence was in fact insufficient was contrary to Sanchez v. State, 275 S.W.3d 901 (Tex. Crim. App. 2009). Based on the chemist’s testimony in this case, Judge Slaughter would hold that the evidence was sufficient to support the conviction for possession of Penalty Group 4 codeine. Accordingly, Judge Slaughter believed it was unnecessary for the Court to determine which remedy should apply. [Commentary: I apologize for the overly long topic heading. But this is a very weird area of the law that really needs a legislative fix to resolve the confusion.] B. Aggravated Assault - Defendant’s statement, “I need to hit” constituted a verbal threat and provided sufficient evidence of the threat element of the charged aggravated assault. Jessie Lee Brooks, Jr. was indicted for family-violence aggravated assault. The indictment alleged that he “did then and there intentionally or knowingly threaten [the victim] . . . with imminent bodily injury by telling her that he was going to end her life, and the defendant did use or exhibit a deadly weapon during the commission of the assault, to wit: a piece of wood.” At trial, the victim testified that Brooks hit her repeatedly with a two-byfour. The victim’s written statement to police was also

The Court of Criminal Appeals reversed. Brooks v. State, --- S.W.3d ---, 2021 WL 5226543 (Tex. Crim. App. Nov. 10, 2021) (9:0:0). Writing for a unanimous Court, Presiding Judge Keller explained that a rational trier of fact could have found that the statement “I need to hit” constituted a verbal threat. A rational jury could have interpreted the statement as Brooks expressing his need to hit the victim. And even if a rational jury could have also interpreted the statement as Brooks telling the victim to hit back, as Brooks argued, it was not required to do so. If such an ambiguity existed, viewing the evidence in the light 16

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Dec. 2021

jury determination of the allegation under Apprendi v. New Jersey, 530 U.S. 466, 494 (2000). The State conceded, and the court of appeals agreed, that the 0.15 allegation was an element of the offense that should have been submitted to the jury at the guilt phase of trial. The court of appeals then applied the constitutional standard for harm and concluded that the error was not harmless beyond a reasonable doubt. Accordingly, the court of appeals reformed the conviction from Class A misdemeanor DWI to Class B misdemeanor DWI and remanded the case for a new punishment hearing

most favorable to the prosecution meant that any ambiguities in the evidence should be resolved in favor of the prosecution. Further, the statement was not made after the assault had ended, as alleged by Brooks. Rather, the statement was made during the assault— Brooks hit the victim, told her “I need to hit,” and then proceeded to hit her some more. Accordingly, a rational jury could have concluded the statement was a threat to continue assaulting the victim. C. Driving While Intoxicated - The State’s failure to read a 0.15 allegation included in a charging instrument until the punishment stage of trial did not constitute an intentional abandonment of the allegation or a failure to join issue, nor was any error harmful in light of the defendant’s decision to have the trial court assess punishment. Phi Van Do hit another car while driving. After failing two standard field sobriety tests, Do consented to a breath test, which showed alcohol concentration levels of 0.194 and 0.205. Do was charged with driving while intoxicated, and the charging instrument included the allegation that an analysis of Do’s breath showed an alcohol concentration of at least 0.15. At the guilt stage of trial, the prosecutor did not read the 0.15 aggravating allegation when he read the charging instrument to the jury, and Do entered a not guilty plea. The two breath tests were admitted into evidence, and the technician who administered the breath tests and a technical supervisor both testified that the machine was working properly and produced a valid test. The jury charge did not include the 0.15 aggravating allegation, and neither party objected to its absence. The jury returned a guilty verdict. Because Do had elected to have the court assess punishment, the jury was released from service. At the beginning of the punishment stage, the State read the 0.15 allegation. Defense counsel objected on the ground that the allegation was not presented to the jury as part of its deliberations. The trial court overruled the objection, found the allegation to be true, and sentenced Do to one year confinement, probated for twelve months. On appeal, Do complained about the trial court’s determination of the 0.15 aggravating allegation at the punishment stage of trial. According to Do, the trial court erred in treating the allegation as a punishment matter when it was in fact an element of the offense and had denied him his federal constitutional right to a

The Court of Criminal Appeals reversed. Do v. State, --- S.W.3d ---, 2021 WL 4448956 (Tex. Crim. App. Sept. 29, 2021) (6:4:3). Writing for the Court, Presiding Judge Keller explained that, assuming the parties were correct that the 0.15 aggravating allegation was an element of Class A DWI, the error was the denial of the right to a jury determination of that element. And the omission of an element of an offense from a jury charge constitutes jury charge error, not a conviction on a lesser-included offense. Niles v. State, 555 S.W.3d 562, 564 (Tex. Crim. App. 2018). Do, however, argued that there was no error in the jury charge because the State, by failing to read the 0.15 allegation at the guilt stage of trial, had failed to join issue and had abandoned the allegation, which meant that the jury was properly instructed on Class B DWI. The Court rejected this argument, concluding that the State’s failure to read the 0.15 allegation did not constitute an intentional abandonment of the allegation or a failure to join issue. Generally, the State must take affirmative action to abandon an allegation, and the simple failure to read an allegation was not an affirmative act of abandonment. Additionally, the Court’s review of relevant precedent indicated that there was no such thing as joining issue on only some of the elements of an offense in a charging instrument. And Do’s desired remedy—striking the 0.15 allegation—was not an available remedy for the State’s failure to join issue, especially considering he requested no curative measures when the error became apparent at trial. Because the 0.15 allegation was included in the charging instrument and the State had not affirmatively acted in a way to indicate it had abandoned the allegation, Do was on notice of the allegation. When the allegation was not read at the 17

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Dec. 2021

supported by Supreme Court precedent, that the failure to have a jury find a particular fact necessary to a particular punishment range is subject to a harm analysis, as is any other jury charge error. Moreover, the real root of the problems wrongly attributed to Niles was a different case altogether: Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). To the extent that the complaint about Niles was that it would require a defendant to object at trial to secure a particular type of harm analysis on appeal, Niles did not create the problem, Almanza did.

beginning of the guilt stage, Do accordingly was on notice that the State had failed to read an allegation that Do believed to be an element of the offense. Thus, Do was in a position to object to the incomplete reading of the offense. Because he failed to do so, Do forfeited any error in connection with the State’s failure to read the allegation at the guilt stage of trial. Accordingly, the Court proceeded under the premise that the type of error at issue was jury charge error. Jury charge error, even if not objected to, is subject to a harm analysis. Only structural errors are exempt from a harm analysis, and the purported error at issue was not a structural error under Neder v. United States, 527 U.S. 1, 8–15 (1999). Accordingly, some sort of harm analysis applied. However, the Court found that it was unnecessary to determine the appropriate standard of harm because the error was harmless even under the standard of harm that most favored Do, which was the constitutional standard applied by the court of appeals. Contrary to the court of appeals findings, though, the Court determined that the test results were uncontroverted because Do had not shown at trial that the lab procedures or resulting tests were flawed. Accordingly, the Court concluded that the error was harmless beyond a reasonable doubt.

Judge Yeary filed a dissenting opinion, joined by Judge Slaughter. Judge Yeary would decide that the 0.15 allegation is an element of Class A DWI under Oliva v. State, 548 S.W.3d 518 (Tex. Crim. App. 2018). Judge Yeary took issue with the Court requiring a defendant to object under these circumstances and treating Do’s claim as jury charge error rather than an illegal sentence. Judge Yeary would also find Niles to be distinguishable based on the failure-to-join issue, but even if the State timely joined issue, he believed the State effectively abandoned the 0.15 allegation by failing to object to its omission from the jury charge at the guilt stage of trial. Ultimately, Judge Yeary believed that the court of appeals resolved the case correctly by modifying the judgment to reflect a conviction for a Class B misdemeanor.

Judge Richardson filed a concurring opinion, joined by Judge Hervey and Judge Newell. Judge Richardson noted that the Court of Criminal Appeals had not yet definitively decided whether the 0.15 allegation is an element or enhancement and suggested that the Court should have resolved the issue in this case. Judge Richardson explained that resolution of the issue would provide clarity to trial judges, defense lawyers, and prosecutors, and it would resolve multiple other dilemmas. Judge Newell filed a concurring opinion, joined by Judge Hervey, Judge Richardson, and Judge McClure. Judge Newell wrote separately to note that the Court would, at some point, have to decide whether the 0.15 allegation was an element or an enhancement, and there were strong arguments in favor of it being an enhancement based on Oliva v. State, 548 S.W.3d 518, 527 (Tex. Crim. App. 2018) and State v. Barbernell, 257 S.W.3d 248, 256 (Tex. Crim. App. 2008). Judge Newell also responded to criticisms of Niles v. State, 555 S.W.3d 562, 569–73 (Tex. Crim. App. 2018) by pointing out that Niles only stood for the proposition,

Judge Walker filed a dissenting opinion, joined by Judge Yeary. In Judge Walker’s view, the case involved two separate harms from two separate errors. The first error was the inadvertent submission of the lesser-included offense of Class B DWI due to the State’s mistaken belief that the 0.15 blood alcohol concentration was a punishment issue rather than an element of Class A DWI. The harm from this error was the jury’s return of a guilty verdict for Class B DWI, which precluded the State from obtaining a Class A conviction based on the 0.15 allegation. Judge Walker opined that the State—not Do—should have been the party required to object to this error. The second error was the trial court’s judgment of conviction and one year sentence for Class A DWI, when the jury had not made the fact finding on the 0.15 allegation required by Apprendi. The harm from the second error was the conviction and sentence for a Class A misdemeanor even though the jury returned a verdict of guilty for only a Class B. With respect to

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Dec. 2021

body-camera footage ended just before the officer reentered the apartment to interview the victim. An EMT who treated the victim after the assault also testified that the victim “stated her boyfriend beat her up.” The EMT report, which was admitted into evidence, also referred to Edward as the victim’s boyfriend. On voir dire outside the jury’s presence and on crossexamination before the jury, however, the EMT admitted that her partner had written the report and that the victim had not told her directly that Edward was her boyfriend. After the State rested, Edward moved for a directed verdict on the ground that there was insufficient evidence of a dating relationship between him and the victim. The trial court denied the motion, and the jury found Edward guilty.

this second error, Judge Walker believed that the responsibility to object fell on Do. This second error was the one at issue before the Court. And the Court’s determination that the second error was harmless was from the standpoint of the wrong party, the State. Instead, Judge Walker would assess harm from Do’s standpoint. Because Do was sentenced to the maximum for a Class A misdemeanor, which was twice the maximum for a Class B misdemeanor, Judge Walker would find that the error was harmful. [Commentary: Keep an eye on this case because it will come up again. Only after the Court resolves whether these “if it is shown on the trial” allegations are elements or enhancements, this case will go away. Exit question: Is it time to revisit Almanza?]

On appeal, Edward again argued that there was insufficient evidence of a dating relationship between him and the victim. The court of appeals agreed and reversed the conviction, finding the evidence insufficient to meet the statutory requirements under Texas Family Code § 71.0021(b) for establishing a dating relationship. However, the court of appeals held that the evidence was sufficient to support all other elements of assault, so it remanded the case for the trial court to reform the judgment to a conviction for misdemeanor assault and to hold a new punishment hearing.

D. Family Violence - Testimony that a victim referred to the defendant as her boyfriend was sufficient to prove the existence of a dating relationship under Texas Family Code § 71.0021(b) despite the absence of the statement on the body camera footage. Duke Edward assaulted the victim inside her apartment. After the victim called 911, police responded to the apartment and contacted the victim, who was in a state of hysteria and had blood on her face and clothing. The victim told police that Edward had hit her and was still inside the apartment’s bedroom. Police located Edward in the bedroom and arrested him. After being treated by EMS, the victim was interviewed by police and completed and signed a family-violence form. Edward was subsequently charged with felony assault for causing bodily injury to a person with whom he was in a dating relationship. At trial, the State’s evidence consisted of the 911 call, testimony from two first responders, portions of an officer’s body-camera video, and the EMS report. The State had been unable to locate the victim, so she did not testify at trial. The officer who initially made contact with the victim testified that the victim referred to Edward as her boyfriend and identified him as the person who hit her. However, portions of the officer’s body-camera video that were played for the jury did not reflect that the victim called Edward her boyfriend. Instead, the body-camera video excerpts only showed that the victim identified Edward by name. The officer later clarified that the body-camera footage did not capture his entire interaction with the victim, and the 19

The Court of Criminal Appeals reversed. Edward v. State, --- S.W.3d ---, 2021 WL 5823404 (Tex. Crim. App. Dec. 8, 2021) (8:0:1). Writing for the Court, Judge Slaughter explained that the officer’s testimony that the victim referred to Edward has her boyfriend, coupled with other circumstantial evidence, provided sufficient evidence of a dating relationship between Edward and the victim. At the outset, the jury could have rationally credited the officer’s testimony because, although the body-camera video contradicted his testimony that she referred to Edward as her boyfriend during his initial contact with her, the officer never wavered from his assertion that the victim did, at some point during their interactions, tell him that Edward was her boyfriend. And the excerpt of the body-camera footage played for the jury ended just before the officer re-entered the apartment to interview the victim, so it was possible that the victim referred to Edward as her boyfriend during an omitted portion of the footage. The jury was responsible for resolving any

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Dec. 2021

knew of no criminal charges filed against any Cossacks in the area. He also told jurors about the ways that a determination of gang membership could be made, opining that Martin was a member of the Cossack Motorcycle Club based on his nonjudicial admission to officers, the Cossack vest, and the fact that Martin had previously been entered into the Texas database for gang members as a Cossack by two different agencies. Martin testified in his own defense that he had been a member of the Cossacks for four years but did not believe the Cossacks were a criminal street gang. He also testified that he had never been convicted of a felony or a misdemeanor, other than traffic violations. Martin had been arrested, along with many other Cossacks and members of another motorcycle club, at the Twin Peak’s shooting in Waco and charged with criminal organization, but all charges were later dismissed. According to Martin’s testimony, there were six Cossacks in Lubbock, they were mechanics and city employees, not criminals, and they did not plot or commit crimes together. The jury found Martin guilty and set his punishment at a fine of $400.00 with no term of confinement.

conflicts in the evidence and credibility determinations, and the court of appeals erred by disregarding the officer’s testimony entirely. Moreover, the officer’s testimony supported the existence of a dating relationship because the use of the word “boyfriend” implied a continuing relationship of a romantic or intimate nature. Circumstantial evidence also supported the dating relationship element, including the facts that Edward and the victim were alone together inside the apartment and clearly knew each other before the incident, Edward was found sitting on the victim’s bed, and the victim completed and signed a family-violence form. The Court also rejected Edward’s argument that the record had to contain affirmative evidence of each of the three considerations enumerated in Texas Family Code § 71.0021(b). Based on the totality of the record, the jury could have rationally inferred that Edward and the victim had “a continuing relationship of a romantic or intimate nature” based on the officer’s testimony and other circumstantial evidence. Accordingly, there was sufficient evidence that Edward and the victim were in a dating relationship, as that term is defined by Texas Family Code § 71.0021(b).

On appeal, Martin argued that the evidence was insufficient to show that he was a member of a criminal street gang. Relying on Ex parte Flores, 483 S.W.3d 632, 645 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d), which defined a “member” of a gang as one of three or more persons who continuously or regularly associate in crime, Martin argued that the State had failed to prove that he was a criminal. The court of appeals agreed and held that an individual must be one of three or more persons with a common identifying sign, symbol, or identifiable leadership and must also continuously or regularly associate in the commission of criminal activities in order to qualify as a gang member. Because the record lacked any evidence showing that Martin himself regularly or continuously engaged in criminal activity pursuant to his membership in a gang, the evidence was insufficient.

Judge Walker dissented without written opinion. E. Unlawful Carrying of a Weapon - To obtain a conviction for the unlawful carrying of a weapon by a member of a criminal street gang, the State must prove that the defendant engaged in criminal activity as part of the criminal street gang. While riding his motorcycle, Terry Martin was stopped by police for traffic violations. During the traffic stop, police noticed that Martin was wearing a motorcycle vest that read “Cossacks MC, Lubbock County, MidCities, Texas” and had Sergeant’s stripes. In response to questions asked by the officers, Martin disclosed that he had a pistol inside his vest and agreed that he was a Cossack. Believing that the Cossacks were a criminal street gang, the officers arrested Martin. The State charged Martin with unlawfully carrying a weapon (UCW) as a member of a criminal street gang, which is a Class A misdemeanor. At trial, a sheriff’s deputy who was part of the Texas Anti-Gang Center testified about the Cossack Motorcycle Club, which is a nationwide motorcycle gang. The deputy testified that members of the Cossacks continuously and regularly engaged in crime, but he also acknowledged that he

The Court of Criminal Appeals affirmed. Martin v. State, --- S.W.3d ---, 2021 WL 5917203 (Tex. Crim. App. Dec. 15, 2021) (6:3:0). Writing for the Court, Judge McClure explained the Court’s decision to adopt the holding of Ex parte Flores. The UCW statute expressly incorporates the definition of a “criminal street gang” found in Texas Penal Code §

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Dec. 2021

VI. JURY INSTRUCTIONS

71.01. Section 71.01(d) defines a criminal street gang as “three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities.” Neither statute, however, defines “member.” In Ex parte Flores, the Fourteenth Court of Appeals determined that the term “member,” read together with the definition of “criminal street gang,” meant that a person had to be one of the one of the three or more persons who continuously or regularly associate in the commission of criminal activities. The Court concluded that Ex parte Flores’s interpretation was not contrary to the statute’s plain language. And, unlike the interpretation proffered by the SPA that a showing of membership was enough, the Ex parte Flores interpretation avoided both absurd results and possible constitutional implications by requiring direct participation in the organization’s criminal activity. Without that requirement of direct participation, according to the Court, the statute would criminalize mere membership in an organization, which could run afoul of the First Amendment. Therefore, to be a gang member, an individual must be one of three or more persons with a common identifying sign, symbol, or identifiable leadership and must also continuously or regularly associate in the commission of criminal activities. Applying this definition to the facts of this case, the Court further concluded that the evidence was insufficient to prove that Martin associated in the commission of criminal activities by the Cossacks. While the evidence showed that Martin was a member of the Cossack Motorcycle Club, the record lacked any evidence showing that Martin associated in the commission of criminal activities by the Cossacks or was aware of any criminal activity by the Cossacks. Accordingly, the Court rendered a judgment of acquittal.

A. Defensive Instructions 1. Defendant who equivocated in his testimony about whether he committed the charged conduct satisfied the confession-and-avoidance doctrine. Marvin Rodriguez was tailgating with his brothers, Candido and Javier, in the parking lot of Cowboys Stadium. After the football game, a fight broke out between Candido and two other men, Miguel and Francisco. The fight culminated in Rodriguez shooting and killing Richard Sells. The State charged Rodriguez with murder. At trial, the State’s evidence showed that Sells was trying to break up the fight when Rodriguez shot him. The defense’s evidence showed that Candido was attacked by Miguel and Francisco and that several people were involved in the violent fight. Rodriguez testified that he retrieved the gun from his brother’s vehicle after his attempts to help Candido were unsuccessful. He denied the intent to kill anyone but instead got his gun to scare away the attackers. According to Rodriguez, Sells was kneeling on Candido’s back and punching him. Rodriguez testified that he grabbed Sells in a headlock and put the gun to his neck, at which point he felt Sells jerk away and felt someone pulling at his arm. The gun fired, mortally wounding Sells. Rodriguez testified that he never intended to fire the gun. On cross examination he agreed that “the only way it would have gone off” was if his “finger was on the trigger.” On redirect examination, he explained that when he felt people pulling his arm and grabbing at him, his “instinctual reaction would be to pull back” and that he instinctually “gripped” the gun “tightly.” At the close of evidence, Rodriguez requested jury instructions on the defenses of necessity, self-defense, and defense of a third person. The trial court denied the requests, and the jury convicted Rodriguez of murder. The court of appeals affirmed on the ground that Rodriguez failed to satisfy the confession-and-avoidance doctrine.

Judge Yeary filed a concurring opinion. Judge Yeary agreed that the Ex parte Flores interpretation was preferable. While he thought that the constitutionality of a particular construction was an important consideration, he gave no opinion on whether the SPA’s proposed construction would create a constitutional problem.

The Court of Criminal Appeals reversed. Rodriguez v. State, 629 S.W.3d 229 (Tex. Crim. App. Sept. 15, 2021) (7:2:0). Writing for the Court, Judge Keel concluded that Rodriguez did satisfy the requirements of the confession-and-avoidance doctrine because his testimony equivocated about his commission of the charged conduct. The confession-

Presiding Judge Keller and Judge Keel concurred in the result. 21

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Dec. 2021

After failing standard field sobriety tests, Maciel was arrested and charged with driving while intoxicated. At trial, Maciel testified that she had been intoxicated and admitted that she got into the driver’s seat while the car’s engine was running to try and safely move the car to a parking lot, but she was unable to move the vehicle because the parking brake was on. She testified that “I couldn’t get the car to move, so I wasn’t driving. I don’t think I was operating it.” At the close of evidence, Maciel requested a jury charge on necessity because she was trying to move the vehicle from the roadway. The trial court denied her request. Maciel appealed, arguing that the trial court erred in refusing her requested jury instruction on necessity. The court of appeals held that there was no error. According to the court of appeals, because Maciel testified that she did not operate the vehicle, she had not sufficiently admitted the underlying offense of driving while intoxicated.

and-avoidance doctrine requires defendants who assert a justification defense to admit—or, at a minimum, not deny—the charged conduct. However, the evidence need not unequivocally show that the defendant engaged in the conduct. In multiple cases, the Court has held that equivocating defendants were nonetheless entitled to defensive instructions. Refusing the requested defensive instructions in such cases would violate a court’s duty to look at the evidence in the light most favorable to the requested instruction, while granting the instructions properly defers to the jury’s authority to resolve conflicts in the evidence. In deciding whether a defensive issue has been raised, courts should consider all the facts surrounding the charged conduct. In this case, Rodriguez equivocated on both the existence of a culpable mental state and the voluntariness of the act, which created a conflict in the evidence. With respect to the voluntariness, Rodriguez testified that someone else tried to jerk the gun away when it went off, but he also conceded that his finger must have been on the trigger and testified that he instinctually gripped the gun tightly when people started grabbing for the gun. A rational jury could find that by gripping the gun tightly with his finger on the trigger, Rodriguez fired the gun voluntarily. With respect to his mental state, Rodriguez’s admission that he pointed a deadly weapon at the victim supported a finding that he had an intent to kill. Because this equivocation created a conflict in the evidence and competing inferences, the instructions should have been given.

The Court of Criminal Appeals reversed. Maciel v. State, 631 S.W.3d 720 (Tex. Crim. App. Oct. 6, 2021) (9:1:0). Writing for a unanimous Court, Judge McClure explained that Maciel was entitled to a jury instruction on necessity. Based on the totality of the evidence, Maciel had satisfied the confession-andavoidance requirement, even if she was incorrect about whether she had legally “operated” the vehicle. Maciel was charged with driving while intoxicated, which a person commits if she operates a motor vehicle in a public place while intoxicated. Although Maciel had testified that she did not think she was operating the vehicle, Texas jurisprudence regarding the confessionand-avoidance doctrine does not require an explicit admission from the defendant that she committed the crime. In her testimony, Maciel essentially admitted to every element of the offense, and based on her testimony, a jury could reasonably infer that Maciel operated a motor vehicle while intoxicated because she reasonably believed that doing so was immediately necessary to avoid imminent danger. Further, given that the term “operate” is not statutorily defined, the Court found it would be unreasonable to focus solely on Maciel’s statement that she did not think she was operating the vehicle. Maciel’s admission that she was trying to move the vehicle, even if she was not actually successful, satisfied the confession-and-avoidance requirement, regardless of Maciel’s personal definition

Judge Yeary and Judge Walker concurred without written opinion. 2. Defendant was entitled to jury instruction on necessity based on her testimony that, while she was intoxicated, she attempted to move the vehicle off the road, notwithstanding her denial that she was operating the vehicle. Bethany Grace Maciel was too intoxicated to drive after a night of drinking with her brother and his wife, so her brother attempted to drive her vehicle home. On the way, Maciel’s brother stopped the vehicle in the middle of the road and began vomiting. Maciel tried to move the car from the middle of the road to a parking lot, but she was unsuccessful in moving the car. Officers arrived on scene and observed Maciel sitting in the driver’s seat with the engine running and attempting to shift gears.

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video also showed Simms swerve at the last second as if to try to return to his lane. Simms testified at trial that he had no memory of the accident, but he believed that he “dozed off” or “passed out” while driving through the tunnel. He denied being under the influence of drugs or alcohol prior to the accident, and there was no evidence showing otherwise. He denied feeling tired while driving, having a known medical condition that would cause him to pass out, or being suicidal. He acknowledged speeding in the tunnel but maintained that it was his falling asleep that caused his failure to maintain a single lane of traffic and failure to keep a proper lookout, which ultimately caused the crash. After the close of evidence, Simms requested lesser-included-offense instructions on regular assault and deadly conduct. The trial court denied both requests. The jury found Simms guilty of aggravated assault.

of whether or not she legally “operated” the vehicle. Accordingly, the Court remanded to the court of appeals for a harm analysis. Judge Newell filed a concurring opinion. Judge Newell joined the Court’s opinion but wrote separately to explain his belief that the Court should recognize that an evaluation of harm is as much a systemic requirement as the preservation of error. Judge Newell noted that, while he recognized the value of affording a court of appeals the opportunity to address undecided legal issues first, he disagreed that the Court benefitted from having the court of appeals conduct a harm analysis because conducting a harm analysis is based upon an examination of the record under established harm standards. Accordingly, Judge Newell would recognize the Court’s ability to resolve the issue of harm when the opportunity presents itself rather than reflexively remanding to the court of appeals for that analysis. B.

On appeal, Simms challenged the trial court’s denial of his request for the lesser-included-offense instruction on deadly conduct. The court of appeals rejected Simms’s arguments, reasoning that Simms conceded he was reckless in speeding into the tunnel and the act of recklessness alone supported both deadly conduct and aggravated assault. Because Simms conceded that he had a reckless state of mind and that his conduct resulted in serious bodily injury to Pineda, the court concluded that there was no evidence that would permit a rational jury to find him guilty only of deadly conduct and not guilty of aggravated assault

Lesser-included Instructions

1. Defendant was entitled to a jury instruction on the lesser-included offense of deadly conduct in an aggravated-assault-with-a-vehicle case based on his testimony that he “must have” dozed off or passed out prior to accident. Christopher Simms was involved in a fatal head-on collision in a narrow, two-lane tunnel. The tunnel’s speed limit was 35 miles per hour, but Simms was driving through the tunnel at between 58 and 62 miles per hour. The tunnel’s surveillance video showed that Simms was initially driving in the correct lane but drifted into oncoming traffic, causing a head-on collision with the vehicle driven by Eduardo Gonzales Pineda. As a result of the collision, Pineda was seriously injured and ultimately died about a week later. The State charged Simms with aggravated assault. The indictment alleged that Simms recklessly caused Pineda serious bodily injury by “failing to control speed, failing to maintain a single lane of traffic, and failing to keep a proper lookout.” The evidence at trial included analysis of the crash data from Simms’s vehicle, which indicated that Simms “floored” the accelerator and that his brakes never activated before the impact, despite the surveillance video appearing to show the bright red glow of his brake lights at the moment of impact. The surveillance 23

The Court of Criminal Appeals reversed. Simms v. State, 629 S.W.3d 218 (Tex. Crim. App. Sept. 15, 2021) (5:0:4). Writing for the Court, Judge Slaughter explained that Simms’s testimony constituted some evidence that would have allowed the jury to rationally conclude that the cause of the accident and the injury to the victim was Simms’s involuntary loss of consciousness, rather than his reckless speeding. The Court began by comparing the elements of the charged aggravated assault to the elements of the lesser offense of deadly conduct. The key difference between the two offenses was the culpable mental state. Deadly conduct required the jury to conclude that Simms engaged in some reckless conduct, while aggravated assault required the jury to conclude that Simms was reckless with respect to the result of his actions in actually causing Pineda’s serious bodily injury. If the

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Dec. 2021

on indecency with a child by contact because it was not a lesser-included offense of the charged crime. Roberto Hernandez was charged with aggravated sexual assault. At trial, the victim, who was Hernandez’s daughter, testified that Hernandez had made her perform oral sex on him. Hernandez testified in his own defense and admitted that he touched the victim’s vagina with his hand and touched her naked torso with his penis. Based on this testimony, Hernandez requested the jury be instructed on the lesser offenses of indecency with a child by contact. The trial court denied the requests. The court of appeals reversed, finding that Hernandez’s testimony presented a valid, rational alternative to the charged offense.

jury believed Simms’s testimony that he was speeding through the tunnel and then passed out or dozed off, then the jury could have rationally concluded that Simms’s conduct in speeding was reckless (e.g., that he was aware of but consciously disregarded a substantial and unjustifiable risk regarding the dangerous circumstances), but that he was not reckless with respect to actually causing Pineda’s serious bodily injury because the conduct leading to that result was committed involuntarily and unconsciously. The important question was what caused Simms to veer into oncoming traffic. It could have been a loss of control based on his speeding, but a jury could also have rationally concluded that his veering into oncoming traffic was caused not by speeding but by his involuntary loss of consciousness. Under this view of the evidence, it would be rational to find Simms guilty of deadly conduct for his reckless speeding, but not guilty of aggravated assault because he would lack the required culpable mental state of recklessness regarding the result of the collision, Pineda’s serious bodily injury. The facts of this case also implicated questions of voluntariness and causation, which were fact questions properly left to the jury. Accordingly, the court of appeals erred by presuming that Simms’s speeding alone necessarily caused Pineda’s serious bodily injury, when the evidence raised the possibility of an intervening circumstance—Simms involuntarily falling asleep or dozing off.

The Court of Criminal Appeals reversed. Hernandez v. State, 629 S.W.3d 218 (Tex. Crim. App. Sept. 29, 2021) (9:0:0). Writing for a unanimous Court, Judge Keel explained that indecency with a child by contact was not a lesser-included offense of aggravated sexual assault. Rather, Hernandez had admitted to committing separate crimes for which he could have been prosecuted in addition to the greater, charged offense of aggravated assault. A defendant is not entitled to an instruction on a lesser offense that is extraneous to—rather than included in—the offense charged. The allowable-unit-of-prosecution analysis, which is used to distinguish separate offenses from included ones for purposes of double jeopardy and jury-unanimity requirements, worked in this context to distinguish extraneous offenses from lesser-included offenses. The allowable unit of prosecution for aggravated sexual assault is penetration, while the allowable unit of prosecution for indecency with a child is sexual contact. Separate acts of contact and penetration constituted separate offenses, and different body parts meant different crimes. In this case, the evidence showed that three different body parts were penetrated or touched. The allegation that Hernandez penetrated a child’s mouth with his penis did not include claims that he touched the child’s torso with his penis or touched her vagina with his hand. Proof of sexual contact with another body part was not required to prove the penis-to-mouth sexual assault with which Hernandez was charged. Accordingly, indecency with a child was not a lesser-included offense. Rather, Hernandez admitted to different, additional crimes

Judge Yeary filed a dissenting opinion, joined by Presiding Judge Keller, Judge Keel, and Judge McClure. The indictment alleged that Simms’s failure to control his speed is what caused serious bodily injury to Pineda, not the collision. When conduct not only puts someone in imminent danger of serious bodily injury, but also actually causes them serious bodily injury, that person is not guilty only of deadly conduct. They are instead guilty of recklessly causing serious bodily injury, which is one of the ways a person commits the offense of aggravated assault. Because the evidence did not exclude Simms’s responsibility for the reckless act of failing to control his speed, the evidence offered no rational basis upon which the jury might have rejected his criminal responsibility for Pineda’s serious bodily injury. 2. A defendant charged with aggravated sexual assault was not entitled to a jury instruction

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The jury charge also instructed the jury that it could find George guilty of capital murder as the principal actor, as a party to the offense, or under a conspiracy theory of liability. The jury returned a general guilty verdict for capital murder.

perpetrated against different body parts by different acts, and he could have been prosecuted for all of them. 3. Defendant who was charged with capital murder committed in the course of a robbery was not entitled to a jury instruction on the lesserincluded offense of robbery because no evidence negated conspiracy liability. Anthony Rashad George was Rachel Burden’s pimp and Jessica Ontiveros’s boyfriend. Both women worked as prostitutes, and one of their clients was Brian Sample. On November 27, 2016, Burden and Ontiveros thrice met with Sample, who had recently received a large insurance settlement, in his hotel room. After the second meeting, Sample gave Burden his room key so that she and Ontiveros could return later. George picked the women up from the hotel, and they informed him that Sample had paid them in hundred-dollar bills retrieved from the safe in the hotel room’s closet, which they believed contained about $8,000. Based on this information, George formulated a plan to rob Sample. Later, the women returned to the hotel room for the third time. Meanwhile, George changed into all-black clothes and returned to the hotel with another man named Rodney Range. The two men drove separately and parked away from the hotel. As George and Range entered the hotel, they encountered Burden, who had left the room to make a phone call, and they instructed her to leave the hotel. George and Range entered Sample’s room, where Sample and Ontiveros were alone together, and proceeded to beat and rob Sample. Although they were unable to open the safe, they stole Sample’s watch and phone. George, Range, and Ontiveros eventually exited the hotel room, leaving Sample unconscious and face down on the bed, in a pool of blood, and with his hands zip-tied behind his back. Sample’s body was discovered a few hours later by hotel housekeeping. Through the investigation of Sample’s murder, law enforcement tracked down and arrested George, Burden, and Ontiveros in Las Vegas. They, along with Range, were indicted for capital murder committed in the course of robbery. George’s case proceeded to jury trial, at which both Burden and Ontiveros testified. At the close of evidence, George requested a jury instruction on the lesser-included offense of robbery. The trial court denied the request. The jury was instructed on capital murder and the lesser-included offenses of murder and manslaughter.

On appeal, George argued, among other things, that the trial court erred by denying his request for a lesser-included-offense instruction on robbery. In support of his position that the jury could have found him guilty of only robbery because Sample’s death was not anticipated, George pointed to two co-conspirator statements: (1) Ontiveros’s testimony that George was “just standing there” during the altercation between Range and Sample; and (2) Burden’s trial testimony that “[t]he intention was just to go up there and get money. It was never for anybody to get hurt.” The court of appeals affirmed, concluding that there was no evidence that would permit the jury to rationally find that George was guilty only of robbery because there was no evidence that Sample’s death was not or should not have been anticipated. The court of appeals further stated that “when one decides to steal property from another, he should anticipate he or his co-conspirator might be confronted by that individual and that his coconspirator might react violently to that confrontation.”

The Court of Criminal Appeals affirmed. George v. State, --- S.W.3d ---, 2021 WL 5512191 (Tex. Crim. App. Nov. 24, 2021) (9:0:0). Writing for a unanimous Court, Judge Slaughter explained that the court of appeals was incorrect to suggest that a categorical rule was appropriate in this context. The Court rejected the court of appeals’ bright-line rule, clarifying that the very nature of the inquiry—whether a jury could rationally find the defendant guilty of only robbery—necessitated a case-specific analysis. However, the Court agreed with the court of appeals’ ultimate conclusion that there was no evidence that would permit the jury to rationally find that George was guilty only of robbery. The Court first explained that the only logical possibility for the jury to find George guilty of only robbery would have been based on the conspirator liability theory. Accordingly, for George to have been entitled to an instruction on robbery, there must have been some evidence directly germane to robbery that refuted or negated at least one of the three elements of conspirator liability. Because it was undisputed that Sample was murdered and that

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Dec. 2021

instructed the jury on self-defense and the use of deadly force, and it included two instructions involving the general duty to retreat. The jury ultimately found Lozano guilty. On appeal, Lozano argued that he was egregiously harmed by the inclusion of the “duty to retreat” instructions because a defendant no longer has a general duty to retreat in Texas. The court of appeals agreed and reversed the judgment of conviction.

the murder was committed in furtherance of a conspiracy to commit robbery, the only possibility was that there was some evidence refuting that George should have anticipated Sample’s murder. Neither Burden’s statement nor Ontiveros’s statement rationally refuted the evidence establishing that George should have, and likely did, anticipate Sample’s murder. Viewed in context, Burden’s testimony provided no evidence as to whether George should have anticipated Sample’s murder because it only related to Burden’s own participation in planning the robbery. And Ontiveros’s testimony describing George’s non-participation in the beating was not directly germane to the critical question: whether George should have anticipated Sample’s murder. The Court ultimately concluded that the totality of the circumstances demonstrated that George should have anticipated Sample’s murder, and no evidence rationally supported the opposite conclusion. Accordingly, the trial court was correct in refusing to include in the jury charge the requested lesserincluded-offense instruction.

The Court of Criminal Appeals reversed. Lozano v. State, --- S.W.3d ---, 2021 WL 4695809 (Tex. Crim. App. Oct. 6, 2021) (9:0:0). Writing for a unanimous Court, Judge Hervey explained that the applicable standard of harm was egregious harm because Lozano had not objected to the charge. Although the “general duty to retreat” instructions were erroneous, they did not affect the basis of Lozano’s case, deprive him of a valuable right, or vitally affect his defensive theory. Instead, because there was no evidence that Lozano subjectively believed deadly force was immediately necessary to protect himself against another’s use or attempted use of deadly force, he was not entitled to an instruction on self-defense in the first place. Accordingly, although the jury was wrongly charged on self-defense, Lozano was benefitted by the error because it afforded him an additional possible basis for acquittal and increased the State’s burden of proof, requiring it disprove selfdefense beyond a reasonable doubt even though it was not raised by the evidence. Therefore, Lozano was not egregiously harmed by the erroneous “duty to retreat” instructions.

C. Egregious Harm - Defendant was not egregiously harmed by erroneous self-defense instructions when he was not entitled to a use-ofdeadly-force-in-self-defense instruction in the first place. Carlos Lozano went to a pool hall with his girlfriend, Fernanda Avila. While there, Lozano became intoxicated and eventually got angry with Avila. As the pool hall was closing, Avila went outside to the parking lot. She saw Lozano in his truck, but she did not want to talk to him and instead left in her own car. At around the same time, Jorge Hinojos was also leaving the pool hall with his girlfriend Diana Ruiz and their friend Carolina Rocha, when Rocha was almost hit by the truck driven by Lozano while walking to her car. Lozano rolled the truck’s window down to stare at Rocha and Ruiz. Hinojos became upset that Lozano was staring at his girlfriend and threw a full can of beer through the open passenger-side window of the truck. Lozano retrieved a gun from a backpack in the backseat of the truck and pointed it at the passenger side. Meanwhile, Hinojos ran to the driver’s side window and punched Lozano. Lozano turned and shot Hinojos three times, killing him. The State charged Lozano with murder. At trial, Lozano’s defense was that he shot Hinojos in self-defense. The jury charge 26

D. Punishment-phase jury charge that failed to properly track the language of the habitual-offender statute amounted to jury-charge error subject to a harm analysis, not an illegal sentence. Orlando Bell was charged with third-degree-felony failure to timely report a change of address in violation of his sexoffender-registration obligations under Code of Criminal Procedure Chapter 62. At trial, the State sought to enhance his punishment under the habitualoffender statute. The State filed a “Notice of Intent to Use Prior Convictions for Enhancement of Punishment” that identified two prior felony convictions: (1) delivery of a controlled substance, for which Bell was adjudicated guilty on September 9, 1994 and filed no notice of appeal; and (2) engaging in organized criminal activity, which was committed on

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charge also did not result in an illegal sentence. Because the error constituted a failure to correctly set forth the law applicable to the case, it was jury-charge error subject to a harm analysis under Almanza. The court of appeals had not yet conducted a harm analysis, so the Court remanded the case to the court of appeals for a harm analysis.

August 21, 1997. A jury found Bell guilty of the failure-to-register offense. At punishment, the jury charge mistakenly instructed the jury to find the enhancement allegations true if it found that Bell’s second prior felony conviction became final after the commission of the first felony offense. The jury charge should have instead instructed the jury to find the enhancement allegations true if it found that the first conviction became final prior to the commission of the second felony, which was what the prosecutor argued in closing. Bell did not object to the jury charge. The jury found the enhancements true and assessed a sentence of fifty years’ imprisonment.

Judge Slaughter filed a concurring opinion, joined by Judge Yeary. Judge Slaughter agreed that the defect in the jury instructions constituted jury-charge error and was subject to a harm analysis. However, she wrote separately to express her agreement with the court of appeals that Niles was distinguishable and did not control the resolution of this case. The error in Niles implicated federal constitutional protections under Apprendi, but the present case did not. Judge Slaughter noted that the distinction affected the applicable harm standard: whereas constitutional errors under Apprendi may invoke the harmless-beyond-areasonable-doubt standard, the non-constitutional error at issue in this case would only fall under Almanza’s less demanding some-harm or egregious-harm standards.

On appeal, Bell argued that the evidence was insufficient to support his conviction. The court of appeals rejected this argument, but it sua sponte held that Bell’s sentence was illegal and void because the punishment-phase jury instructions did not properly authorize the enhancements, and the fifty-year sentence exceeded the maximum punishment for a third-degree felony. The State filed a motion for rehearing, arguing based on Niles v. State, 555 S.W.3d 562 (Tex. Crim. App. 2018) that the error was a jury-charge error subject to a harm analysis. The court of appeals held that Niles was distinguishable and that the State had waived its right to seek the enhanced punishment by failing to request and obtain a finding essential to the enhancement. Finally, the court of appeals reasoned that, even assuming the error was subject to a harm analysis, the error could never be considered harmless. The Court of Criminal Appeals reversed. Bell v. State, --- S.W.3d ---, 2021 WL 5823403 (Tex. Crim. App. Dec. 8, 2021) (7:2:0). In a per curiam opinion, the Court explained that the error in the jury instructions was not properly analyzed as an illegal sentence and was instead jury-charge error subject to a harm analysis. The Court agreed that Niles was distinguishable in some respects, but it nevertheless applied Niles’s holding to find that the error in this case did not amount to an illegal sentence. The error involved in Niles was the complete omission of an element of the offense, which the Court found to be more egregious than the erroneously-worded instruction included in the jury charge in this case. The Court reasoned that, if a complete omission of an element did not result in an illegal sentence, then an erroneous instruction that was actually included in the

VII. SENTENCING A. Death Penalty 1. Mandatory sentence of life without the possibility of parole after the State waived the death penalty was not unconstitutional as applied to an intellectually-disabled defendant convicted of capital murder. Johnny Joe Avalos was charged with capital murder for the serial killing of five women. After the State waived the death penalty, Avalos filed pretrial motions arguing that the Eighth Amendment prohibits the automatic imposition of a life sentence without parole for a defendant who, like Avalos, is intellectually disabled. The trial court denied the motions, and Avalos pleaded guilty to two capital murders. The trial court accepted the plea and sentenced Avalos to two life sentences without the possibility of parole, as required by Texas Penal Code § 12.31(a)(2) when the State waives the death penalty. On appeal, Avalos again argued that the automatic imposition of life sentences without parole amounted to cruel and unusual punishment under the Eighth Amendment to the United States Constitution because he was denied an individualized assessment prior to the 27

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by nature in juveniles, while being fixed attributes of intellectually-disabled adults. And it was the transient nature of these characteristics that informed Miller’s conclusion that a sentencer must “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Miller, 567 U.S. at 480. In contrast, the Court was not aware of any evidence that an intellectually-disabled adult offender would grow out of those aspects of his condition that may have contributed to his commission of his offense in the same way that a juvenile offender will eventually become an adult. Accordingly, the Court concluded that Harmelin—not Miller—controlled and held that Avalos’s mandatory sentences of life without parole did not violate the Eighth Amendment.

imposition of punishment. The Fourth Court of Appeals, sitting en banc, agreed and reversed and remanded for resentencing. The Court of Criminal Appeals reversed. Avalos v. State, --- S.W.3d ---, 2021 WL 5917199 (Tex. Crim. App. Dec. 15, 2021) (5:3:1). Writing for the Court, Judge Yeary explained that the issue presented was whether to extend the United States Supreme Court’s holding in Miller v. Alabama, 567 U.S. 460 (2012) to cover intellectually-disabled adults. In Miller, the U.S. Supreme Court held that mandatory life imprisonment without parole for those under the age of 18 at the time of their crimes violated the Eighth Amendment's prohibition on cruel and unusual punishments. In so holding, the Miller Court drew from two lines of precedent: one strand of cases delineating the constitutionally permissible sentencing procedures for capital cases, including the individualized-sentencing-determination requirement, and a second strand of cases holding that the Eighth Amendment categorically barred certain punishments for certain offenders who are less morally culpable, such as juveniles and intellectually-disabled adults. Considering the particular characteristics of juveniles that lessen their moral culpability and the severity of the penalty of life without the possibility of parole, the Miller Court extended the individualized-sentencing requirement beyond the context of the death penalty for the first time. Cf. Harmelin v. Michigan, 501 U.S. 957 (1991) (holding that the Eighth Amendment does not require an individualized sentencing determination—as a prerequisite to assessing a sentence of life without parole—for an adult offender, and that the mandatory imposition of such a sentence is constitutionally acceptable.). Applying the same analysis as the U.S. Supreme Court applied in Miller, the Court of Criminal Appeals declined to extend Miller’s ban on the automatic imposition of life without parole on juvenile offenders to cover adult offenders who are intellectually disabled. While the Court noted that juveniles and intellectuallydisabled adults shared many of the same mitigating characteristics noted in cases like Atkins v. Virginia, 536 U.S. 304 (2002), and Roper v. Simmons, 543 U.S. 551 (2005), such as diminished impulse control and greater susceptibility to peer pressure, the critical distinction was that these characteristics were transient

Judge Hervey, Judge Richardson, and Judge Newell concurred in the result. Judge Walker dissented without written opinion. 2. Evidence that a capital defendant would pose a continuing threat to society, whether in or out of prison, was sufficient to support jury’s affirmative finding on the future-dangerousness special issue. Gabriel Paul Hall murdered sixty-eightyear-old Edwin Shaar, Jr. and attempted to murder Shaar’s wife, Linda. Mrs. Shaar survived the attack and gave police a physical description of her assailant. Police eventually identified Hall, who was eighteen years old, as matching the description. Hall’s parents, who had adopted Hall from the Philippines when he was young, brought Hall to the police station so he could give a voluntary statement. During the interview, Hall confessed to the murder and attack of the Shaars, who were strangers to him. Hall expressed that he attacked the Shaars because he wanted to kill and that he felt no remorse for what he had done. Hall also told police where he had hidden physical evidence, which police successfully recovered and ultimately connected Hall to the crimes. Hall was charged with capital murder for the killing of Mr. Shaar in the course of committing or attempting to commit burglary. Following a trial, the jury found Hall guilty of capital murder. At the punishment phase of trial, the State introduced evidence relating to the brutality of the offense; items found in Hall’s bedroom, including weapons and a handwritten list of names the State 28

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video at the punishment phase of trial. The Court first rejected Hall’s argument in point of error one that his Sixth Amendment right to counsel had been violated because there was no evidence that Ross was acting as an agent of the State when he spoke with Hall at the jail. In point of error two, Hall argued that video should have been excluded under Texas Rules of Evidence 401, 402, and 403. The Court found that the contents of the video were relevant to the punishmentphase special issues because Hall, in an informal setting where Hall was likely to be unguarded, made comments arguably evidencing a lack of remorse and disregard for human life. Further, even though many of Ross’s statements on the video were concerning, the trial court’s ruling that the video’s overall probative value was not substantially outweighed by the danger of unfair prejudice, confusing the issues, or misleading the jury was within the zone of reasonable disagreement. The Court then rejected Hall’s arguments in point of error three that admission of the video violated the Eighth Amendment and the Due Process Clause, finding that Hall had either inadequately briefed the arguments or failed to preserve them for review.

alleged to be a “hit list”; and instances of Hall’s bad behavior in the county jail while he awaited trial, such as possessing weapons and threatening to kill other inmates and guards. Four witnesses who were incarcerated in the Brazos County Detention Center with Hall testified to statements made by Hall while he was awaiting trial. The State also presented video footage from February 2015 showing Hall interacting with Comedy Central comedian Jeff Ross, who was at the detention center filming content for a television show. Hall’s evidence at punishment centered upon his early life in the Philippines, his lack of any other history of violence or criminal behavior, and his mental health. Based on the jury’s answers to the special issues, the trial court sentenced Hall to death. On appeal, Hall raised fifteen points of error. The Court of Criminal Appeals affirmed the conviction and death sentence. Hall v. State, --- S.W.3d ---, 2021 WL 5823345 (Tex. Crim. App. Dec. 8, 2021) (9:0:0). Writing for the Court, Judge Hervey first disposed of Hall’s seventh issue, in which Hall challenged the sufficiency of the evidence to support the jury’s finding on the future-dangerousness special issue. Hall argued that the proper inquiry was whether the evidence proved beyond a reasonable doubt that he would pose a continuing danger in prison. The Court rejected this argument and reiterated that the question was whether a defendant would be dangerous in or out of prison. The Court reviewed the evidence on future dangerousness, including the brutality of the crime, the fact that Hall targeted complete strangers, and Hall’s lack of remorse. Viewing in the light most favorable to the jury’s verdict, the evidence supported the jury’s determination that Hall posed a continuing threat to society. In points of error one, two, and three, Hall argued that the trial court erred to admit in the punishment phase of trial a video recording in which Comedy Central comedian Jeff Ross is shown joking around with several inmates, including Hall, in the Brazos County Detention Center. The video recording was made during filming for Jeff Ross’s comedy special, but the portions of film involving Hall were omitted from the special because Hall had not yet gone to trial. In the video, Ross mocked Hall’s appearance and joked about his race, and Hall made comments arguably evincing a lack of remorse. The State introduced the

The Court found Hall’s remaining points of error to be without merit. In points of error four and five, Hall argued that the trial court erred by refusing to include in its punishment phase charge an instruction requiring the corroboration of jailhouse witness testimony. In point of error six, the Court rejected Halls’s contention that the future-dangerousness special issue violated the Eighth Amendment’s heightened standard for reliability in the determination that death is the appropriate punishment because whether a defendant would pose a continuing threat to society called for speculation. In points of error eight and nine, Hall argued that the trial court erred to overrule his objection to part of the State’s punishment phase closing argument, in which the State argued that sentencing Hall to life imprisonment would be effectively giving him a free pass. Both grounds were subject to procedural default, and the Court concluded that Hall had failed to preserve error. In point of error ten, Hall argued that the trial court denied him an opportunity for “meaningful voir dire” in violation of the Sixth, Eighth, and Fourteenth amendments to the United States Constitution by refusing to allow him to 29

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Dec. 2021

a single criminal action because they were disposed of in a consolidated punishment proceeding. Consequently, the court of appeals modified the trial court’s judgment to reflect that all sentences were concurrent.

ask each prospective juror whether he or she could consider “youth and mental illness to be evidence in mitigation,” but the Court found that Hall’s proffered questions were improper commitment questions. In points of error eleven and twelve, Hall argued that Texas Code of Criminal Procedure Article 37.071’s definition of mitigating evidence is inconsistent with the Eighth Amendment, both on its face and as applied to Hall’s case. The Court noted that it had repeatedly rejected facial challenges to the statute and declined to revisit those holdings, and it rejected Hall’s as-applied challenge. In point of error thirteen, the Court rejected Hall’s argument that the trial court erred to overrule his Batson objection. In point of error fourteen and fifteen, Hall argued that the Eighth Amendment forbids the execution of offenders who, like Hall, were between the ages of eighteen and twenty-one or who were suffering from “severe mental illness” when they committed capital murder. The Court remained unpersuaded that a national consensus had formed against the execution of either category of offender. Accordingly, it overruled Hall’s points of error.

The Court of Criminal Appeals affirmed. Middleton v. State, 634 S.W.3d 46 (Tex. Crim. App. Nov. 3, 2021) (9:0:0). Writing for a unanimous Court, Presiding Judge Keller explained that when a defendant has been placed on deferred adjudication, later charged with a new offense, and the punishment stage for both the deferred-adjudication offense and the new offense occur in the same proceeding, the two cases have been tried in the same criminal action. Because of the unique characteristics of deferred-adjudication—that it is not a conviction for most purposes, lacks finality in significant respects, and retains exposure to the full range of punishment—the Court concluded that a deferred-adjudication plea proceeding is not complete under the concurrent-sentencing statute until sentence is imposed after adjudication. Accordingly, the Court concluded that the disposition of the deferredadjudication offenses and the new offenses in a single sentencing hearing constituted a consolidated punishment hearing. Accordingly, the sentences could not be stacked, and the court of appeals was correct to hold that the sentences in all of the cases must run concurrently.

B. Stacking - Offenses were prosecuted in the same criminal transaction, such that the sentences could not be stacked, where the defendant was adjudicated guilty of three offenses, plead guilty to two additional offenses, and was sentenced for all five simultaneously. Brian Ray Middleton pleaded guilty to three theft offenses pursuant to a plea agreement, and the trial court placed him on deferred adjudication community supervision. He later committed two new thefts, and the State filed motions to adjudicate guilt in the three earlier cases. Middleton pleaded guilty to the two new offenses. The trial court held a hearing on all five offenses. At the end of the hearing, the trial court found that Middleton had violated the conditions of his probation for the three deferred-adjudication offenses, found Middleton guilty of those three offenses, and found Middleton guilty of the two new offenses. The trial court then sentenced Middleton to two years in state jail for each offense and stacked all five sentences. On appeal, Middleton argued that the trial court was prohibited from cumulating the sentences pursuant to Section 3.03 of the Penal Code. Relying on Robbins v. State, 914 S.W.2d 582 (Tex. Crim. App. 1996), the court of appeals held that the five theft offenses were all tried in 30

C. Enhancements – An aggravated state-jail felony may be enhanced under the habitualoffender statute to a first-degree offense based upon two additional and sequential prior felony convictions. Edmund Koko Kahookele was charged with two counts of state-jail felony possession of a controlled substance, namely cocaine and methamphetamine. The indictment contained an enhancement paragraph alleging a prior murder conviction, which would make each count an “aggravated state jail felony” punishable as a thirddegree felony under Texas Penal Code § 12.35(c). The indictment also alleged two additional sequential felony convictions for engaging in organized criminal activity and forgery by possession, which would raise the potential punishment to the habitual-offender range of 25 to 99 years or life under Texas Penal Code § 12.42(d). Kahookele filed a motion to quash the indictment, arguing that the enhancement paragraphs

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Dec. 2021

appeals on its own motion, vacated the judgment of the court of appeals, and remanded the case to the court of appeals to address the cognizability of the issue raised in Simms’s pretrial writ application. Ex parte Couch, 629 S.W.3d 217 (Tex. Crim. App. Sept. 15, 2021) (9:0:0). Generally, a pretrial writ application is not appropriate when resolution of the question presented, even if resolved in favor of the applicant, would not result in immediate release. Couch’s indictments alleged that she did knowingly (1) “finance or invest” or (2) “intend to finance or invest,” but Couch’s writ application challenged only the portion of the statute relating to the latter. Thus, even if the challenged portion of the statute were struck as facially unconstitutional, it may be that only those corresponding portions of her indictments would need to be struck, and the prosecution could at least theoretically proceed on the other allegations. The court of appeals should have addressed cognizability as a threshold issue before reaching the merits of the claim.

were invalid. The trial court granted the motion to quash. The court of appeals held that Kahookele’s punishment for the charged aggravated state-jail felony offenses could be further enhanced under the habitualoffender statute based on his convictions of engaging in organized criminal activity and forgery by possession. The Court of Criminal Appeals affirmed. State v. Kahookele, --- S.W.3d ---, 2021 WL 5917232 (Tex. Crim. App. Dec. 15, 2021) (9:0:0). Writing for a unanimous Court, Judge Keel explained that sections 12.425(c) and 12.42(d) were neither ambiguous nor in conflict, and their plain language supported the court of appeals’ interpretation that section 12.42(d) applied to aggravated state jail felonies. Section 12.42(d) specifically excepted state jail felonies that were punishable under § 12.35(a) but said nothing about aggravated state jail felonies under § 12.35(c). Had the legislature wanted to except all state jail felonies from § 12.42(d), as Kahookele argued, it would have done so. The fact that the legislature did not suggested that aggravated state jail felonies punishable under § 12.35(c) could be used for enhancement purposes under § 12.42(d). This interpretation gave effect to all the words and phrases in both statutes and did not lead to absurd results. Accordingly, Kahookele’s two counts, which were aggravated state jail felonies, could be further enhanced under § 12.42(d), and the trial court erred in quashing the indictment. VIII.

B. Harm - Any error in admitting police report regarding an extraneous offense over defendant’s objection was harmless. Juan Macedo was charged with the murder of his wife, Maria Alvarado. The evidence at the guilt stage of trial showed that Macedo brought Alvarado’s dead body to a hospital. She had been shot in the head. Macedo gave conflicting explanations for Alvarado’s death, first claiming that Alvarado had been the victim of a random shooting but later claiming that she had shot herself. Other evidence indicated that Macedo shot her. Alvarado’s father and son testified for the State. Alvarado’s father, Armando, testified that Macedo mistreated Alvarado. Alvarado’s son, Juan Jr., which she shared with Macedo, testified that Macedo always carried a gun, fought with Alvarado all the time, kicked holes in the bedroom wall, and once pulled Alvarado’s head towards his own, pointed his gun at his own head, and said they were both going to die.

APPEALS

A. Pretrial Writs - Court of appeals should have addressed cognizability as a threshold issue before reaching the merits of claim. Tonya Couch was charged in four separate cause numbers with money laundering under Texas Penal Code § 34.02(a)(4). Couch filed a pretrial application for writ of habeas corpus seeking dismissal of the indictments on the ground that section 34.02(a)(4) is facially unconstitutional. The trial court denied relief. On appeal, the court of appeals upheld the trial court’s ruling and held that the statute was not facially unconstitutional. Couch filed a petition for discretionary review challenging the court of appeals’ construction of the statute. In a per curiam opinion, the Court of Criminal Appeals granted review of the decision of the court of 31

At the punishment stage, the State introduced a judgment of Macedo’s guilty plea to a domestic violence offense in California and a police report for that offense. Macedo objected to the admission of the police report on the ground of hearsay, but the trial court overruled the objection. The police report indicated that Macedo kicked the victim in the jaw and

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Dec. 2021

violent towards Alvarado and Juan Jr. multiple times. Even without the details of the extraneous offense, the jury would still have learned from the prior judgment that Macedo had a prior family violence conviction against Alvarado. Though the prosecutor did emphasize the biting in closing arguments, the prosecutor also emphasized the use and threat of the horse whip, which was far more probative of Macedo’s anger and viciousness than the fact that he bit his wife once. And, while the jury had asked for the judgment and police report, the only evidence the jury learned from the police report not contained in the judgment was the detail that Macedo bit and kicked Alvarado. The jury would still have known that Macedo was previously convicted of a domestic violence offense involving Alvarado. Without the details, the jury would have been left to imagine what happened during that offense, and given the horse-whip testimony and the prior threat with the gun, the jury could have imagined the extraneous offense to be even worse than it was. Under these circumstances, the Court had a fair assurance that the details of the offense in the police report did not influence the jury or had but slight effect.

bit her on her right eye area. Armando and Juan Jr. again testified at the punishment stage. In response to State questioning about the prior conviction, Armando testified that Macedo “beat her.” Armando also testified to the absence felt by Alvarado’s children. Juan Jr. testified that Macedo was “really aggressive” with both him and Alvarado and that that he was afraid of Macedo because he “was just very mean, and he would hit me for no reason all the time.” Juan Jr. described how Macedo would hit him with a horse whip. He also testified that Macedo hit Alvarado “a lot of times.” Juan Jr. recounted a particular incident where Macedo threatened to intentionally crash the car the three of them were riding in after Alvarado threatened to leave him. During closing arguments, the State referenced the evidence of biting in the prior extraneous conviction. Prosecutors also talked about Juan Jr.’s testimony about the horse whip, the testimony regarding the effect of Alvarado’s absence on her children, and the prior instances and threats of violence described by Juan Jr. After deliberations, the jury returned a maximum sentence. On appeal, Macedo challenged the admission of the police report. The court of appeals held that the police report was erroneously admitted because it was hearsay, and the error was harmful. Despite the evidence showing Macedo’s prior abuse to Alvarado and his son, the court of appeals could not say with fair assurance that the police report did not influence the jury or influenced the sentence only slightly, given that the State emphasized it in closing and the jury asked to see it before returning a verdict for the maximum sentence. The Court of Criminal Appeals reversed. Macedo v. State, 629 S.W.3d 237 (Tex. Crim. App. Sept. 15, 2021) (6:3:0). Writing for the Court, Presiding Judge Keller explained that, assuming the police report was inadmissible hearsay, its admission was nonconstitutional error, which meant that it must be disregarded if it does not affect substantial rights. An error does not affect substantial rights if the appellate court has “a fair assurance from an examination of the record as a whole that the error did not influence the jury or had but a slight effect.” In light of all the punishment evidence, the evidence that Macedo bit Alvarado one time was relatively insignificant. The evidence at punishment showed that Macedo was

Judges Hervey, Richardson, and Walker concurred without written opinion. IX. HABEAS CORPUS A. False Evidence - Court remanded petition for writ of habeas court for the habeas court to fully develop all the applicant’s claims. A jury convicted Andrew Wayne Roark of injury to a child for causing serious bodily injury by vigorously shaking the 13month-old victim. Roark filed an application for a writ of habeas corpus alleging multiple grounds for relief based on new or false evidence relating to Shaken Baby Syndrome. The habeas court made findings of fact and conclusions of law and recommended the Court grant Roark a new trial under Article 11.073. The Court of Criminal Appeals remanded the cause to the habeas court to make findings of fact and conclusions of law addressing each of Roark’s claims. Ex parte Roark, --- S.W.3d ---, 2021 WL 4186719 (Tex. Crim. App. Sept. 15, 2021) (7:0:2). Writing for the Court, Judge Hervey explained that the Court filed and set the case to resolve two questions: (1) whether Roark is entitled to a new trial under Article 32

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the State had violated Brady v. Maryland and that he would not have plead guilty to aggravated sexual assault had the State disclosed the material. The Court of Criminal Appeals vacated Hill’s enhancing conviction on involuntary-plea grounds in May 2018. In November 2018, Hill filed writ applications for the more recent convictions, arguing that his enhanced life sentences are illegal and that he received ineffective assistance of counsel because, among other things, trial counsel failed to investigate the validity of the enhancement conviction. The Court agreed that Hill’s life sentences were illegal but remanded the case for a determination of harm.

11.073 of the Texas Code of Criminal Procedure based on new scientific evidence, and (2) whether the Due Process Clause was violated because the State’s expert witness partially recanted her trial testimony. However, the habeas court’s findings of fact and conclusions of law did not address all of Roark’s claims. While Roark had alleged that multiple areas of science had evolved since his trial, the habeas court only addressed one of those areas of science and suggested the Court remand if it concluded Roark was not entitled to relief on that one ground. The Court explained that addressing that ground without full presentment of all the issues in the application was an inappropriate use of the writ of habeas corpus. Rather, all of an applicant’s claims should be fully developed and ready to be resolved when the record is transmitted to the Court.

The Court of Criminal Appeals concluded that Hill was entitled to be resentenced on his conviction for aggravated sexual assault but not his conviction for indecency with a child. Ex parte Hill, 632 S.W.3d 547 (Tex. Crim. App. Oct. 20, 2021) (6:3:3). Writing for the Court, Judge Hervey first explained, as a threshold matter, that the doctrine of laches did not bar Hill’s claim. Any delay in challenging the enhancement conviction was no longer at issue because the Court already overturned the conviction. The appropriate time to apply laches because of Hill’s delay in challenging his enhancement conviction would have been before the Court reached the merits of Hill’s claims in the habeas proceeding for the enhancing conviction, not now that Hill was raising different claims challenging different sentences less than six months after the claims became available. Turning to Hill’s illegal-sentence claims, the Court concluded that Hill had not forfeited his illegal-sentence claims by failing to object at trial, pursuant to Ex parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006). The Court further concluded that Hill’s enhanced sentences of life imprisonment were illegal. When dealing with an illegal-sentence claim based on an improper enhancement, the Court determines the legality of the punishment as it stands, not as it stood at some other time. Because both sentences exceeded the maximum term of confinement for a second-degree felony, which was what Hill could have received from the jury without the enhancement, Hill’s sentences were illegal. Turning to the issue of harm, the Court concluded that, under Ex parte Parrott, 396 S.W.3d 531, 537 (Tex. Crim. App. 2013), Hill had been harmed by his illegal sentence for the sexual assault of a child, but not by his

B. Illegal Sentences - Applicant who had been automatically sentenced to life imprisonment based on an enhancement was entitled to be resentenced where the Court had vacated the predicate enhancing conviction. Michael Charles Hill was convicted of sexual assault of a child and indecency with a child by contact, which were both second-degree felonies. Based on a previous conviction for aggravated sexual assault in 2000, Hill was automatically sentenced to life imprisonment for the sexual-assault offense, and his punishment range for the indecency offense was enhanced to that of a firstdegree felony. The jury sentenced him to life imprisonment, and the judge stacked the sentences. Hill’s convictions and sentences were affirmed on appeal, and Hill did not file a petition for discretionary review in either case. Approximately six months after the appeal, Hill hired postconviction counsel, who began investigating the enhancing aggravated-sexualassault conviction. Hill filed his initial habeas application in September 2014, but the application was dismissed in April 2015 on request of counsel. In December 2015, Hill filed a second habeas application in which he argued that he was actually innocent because the victim had recanted her allegations. The second application was dismissed on Hill’s request in June 2016 because the Dallas County District Attorney’s Office’s Conviction Integrity Unit had offered to review Hill’s case. In September 2016, Applicant filed a third habeas application, claiming that 33

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Dec. 2021

briefly placed his knee on Cortesluna’s back, near where the knife was located in Cortesluna’s pocket. Rivas-Villegas was in this position for no more than eight seconds.

illegal sentence for indecency with a child. Because Hill’s actual criminal history could not support the automatic life sentence he received, Hill had shown Parrott harm on his conviction for sexual assault of a child. By contrast, Hill could not show that he was harmed by his illegal sentence for indecency with a child because his actual criminal history supported the first-degree felony punishment range in which he was sentenced. Accordingly, Hill was entitled to a new punishment hearing on his conviction for sexual assault of a child, but not on his conviction for indecency with a child.

Cortesluna later sued under 42 U.S.C. § 1983, alleging that Rivas-Villegas used excessive force. The District Court granted summary judgment to RivasVillegas, but the Court of Appeals for the Ninth Circuit reversed. Relying on LaLonde v. County of Riverside, 204 F. 3d 947 (CA9 2000), the Ninth Circuit held that Rivas-Villegas was not entitled to qualified immunity because existing precedent put him on notice that his conduct constituted excessive force.

Presiding Judge Keller filed a concurring and dissenting opinion. Presiding Judge Keller disagreed with the Court’s grant of relief regarding Hill’s sentence for sexual assault of a child. In her view, Hill’s claims were barred by laches.

The United States Supreme Court reversed. Rivas-Villegas v. Cortesluna, 595 U.S. --- (Oct. 18, 2021). In a per curiam opinion, the Supreme Court explained that, even assuming that controlling Circuit precedent clearly establishes law for purposes of §1983, LaLonde did not give fair notice to RivasVillegas because the facts of LaLonde were materially distinguishable. Therefore, Rivas-Villegas was entitled to qualified immunity.

Judge Yeary filed a concurring and dissenting opinion, in which Judge Slaughter joined. Judge Yeary similarly disagreed with the Court’s grant of relief. In his view, the enhanced sentence for sexual assault of a child was not illegal because the enhancement was valid at the time Hill was sentenced.

2. Officers, who shot and killed a defendant after he raised and attempted to throw a hammer at them, did not violate clearly established law on excessive force and were eligible for qualified immunity. Officers Josh Girdner, Chase Reed, and Brandon Vick responded to a 911 call from Dominic Rollice’s ex-wife, in which she reported that Rollice was intoxicated and would not leave her house. After the officers arrived, she led them to the side entrance of the garage, where Rollice was located. Officers began conversating with Rollice. After one of the officers stepped toward Rollice, Rollice moved to the back of the garage, grabbed a hammer from the back wall, and turned to face the officers. Rollice held the hammer as if preparing to swing it, and the officers drew their guns and ordered Rollice to drop the hammer. Instead of dropping the hammer, Rollice took a few steps to his right and raised the hammer higher behind his head as if he was going to throw the hammer or charge at the officers. In response, Officers Girdner and Vick fired their weapons, killing Rollice.

[Commentary: Does the Court’s resolution of the laches argument place more pressure on the State to raise the issue of laches in every case? Put another way, if the State fails to raise laches in writ of habeas corpus challenging a conviction lose the ability to raise the issue when that conviction is later used for enhancement?] X. FEDERAL LAW A. § 1983 Claims 1. A police officer did not violate clearly established law and was not made ineligible for qualified immunity by briefly placing his knee on a defendant’s back. Daniel Rivas-Villegas, a police officer in Union City, California, responded to a 911 call reporting that a woman and her two children were barricaded in a room for fear that Ramon Cortesluna, the woman’s boyfriend, was going to hurt them. After officers commanded Cortesluna out of the house and onto the ground, officers noticed a knife in Cortesluna’s pocket. While in the process of removing the knife and handcuffing Cortesluna, Rivas-Villegas

Rollice’s estate filed suit against, among others, Officers Girdner and Vick, alleging that the officers 34

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were liable under 42 U.S.C. § 1983, for violating Rollice’s Fourth Amendment right to be free from excessive force. The District Court granted summary judgment in favor of the officers, but the Court of Appeals for the Tenth Circuit reversed. The Court of Appeals concluded that several cases, most notably Allen v. Muskogee, 119 F. 3d 837 (CA10 1997), clearly established that the officers’ conduct was unlawful. The United States Supreme Court reversed. City of Tahlequah, Oklahoma v. Bond, 595 U.S. --- (Oct. 18, 2021). In a per curiam opinion, the Supreme Court explained that the officers plainly did not violate any clearly established law based on this record. The Supreme Court noted that it has repeatedly told courts not to define clearly established law at too high a level of generality, and specificity is especially important in the Fourth Amendment context. The Tenth Circuit had contravened these principles, and none of the decisions relied upon by the Court of Appeals came close to establishing that the officers’ conduct was unlawful. The Court of Appeals had relied most heavily on Allen, but the facts of Allen were dramatically different from the facts of this case. The other decisions relied upon by the Court of Appeals were even less relevant. Because the Court of Appeals and the respondent failed to identify precedent finding a Fourth Amendment violation under similar circumstances, the officers were entitled to qualified immunity. [The. End.]

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Dec. 2021

Judge David Newell was elected to the Court of Criminal Appeals on November 4, 2014. The son of Thomas and Linda Newell, David was born at the Bethesda Naval Hospital in Maryland, though he grew up in Sugar Land, Texas with his much taller, older brother, Robert Newell. David graduated cum laude from William P. Clements High School. He earned his undergraduate degree in English with a concentration in Creative Writing at the University of Houston. He graduated magna cum laude, earning University honors and honors in his major. He received his J.D. from the University of Texas School of Law in 1997 before returning home to work in the Fort Bend County District Attorney's Office. He served as an appellate prosecutor for 16 years, first in Fort Bend County and later in the Harris County District Attorney's Office from 2007 until his election to the Court. Judge Newell has twice served as the Chairman of the Editorial Board for the Texas District and County Attorney's bi-monthly journal, The Texas Prosecutor. He also co-authored a regular byline for the journal, "As the Judges Saw It," a column that analyzed and summarized the significant decisions of the Court of Criminal Appeals and the United States Supreme Court. He served repeatedly on the planning committee for the Advanced Criminal Law Course for the State Bar of Texas. And he has presented the Court of Criminal Appeals Update at the Texas Conference on Criminal Appeals, the TDCAA Criminal and Civil Law Update, and the Texas State Bar's Advanced Criminal Law Course. On the Court, he currently serves as the Chairperson of the Court of Criminal Appeals Rules Advisory Committee. He is also the co-course director, along with Judge Barbara Hervey, for the “Robert O. Dawson Conference on Criminal Appeals,” a biennial criminal appellate seminar for the University of Texas School of Law CLE. Judge Newell is board certified by the Texas Board of Legal Specialization in both criminal law and criminal appellate law. He is also licensed by the State Bar of Texas and admitted to practice before the Fifth Circuit Court of Appeals and the United States Supreme Court. In 2013, David received the C. Chris Marshall Award for Distinguished Faculty from the Texas District and County Attorneys' Association. In 2021 he received the Exemplary Speaker Award from the Texas Center for the Judiciary. That same year he was nominated for and elected to membership in the American Law Institute. David and his beautiful wife, Shayne, currently live in the Houston area with their two sons.

Texas Criminal Defense Lawyers Association

Appellate Seminar – Raising the Bar February 4, 2022 Hilton Austin Airport 9515 Hotel Dr Austin, TX 78719

Topic: Where is the Law Heading? Speaker:

Mark Stevens

310 S Saint Marys St Ste 1920 San Antonio, TX 78205-3154 (210) 226-1433 Phone (210) 223-8708 Fax mark@markstevenslaw.com www.markstevenslaw.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

WHERE IS THE LAW HEADING? CASES IN WHICH DISCRETIONARY REVIEW HAS BEEN GRANTED SOMETIMES IT’S BETTER TO KNOW WHAT THE LAW COULD BE, THAN WHAT THE LAW IS APPELLATE SEMINAR – RAISING THE BAR TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION AUSTIN, TEXAS HOLIDAY INN – AUSTIN MIDTOWN FEBRUARY 4, 2022 Mark Stevens 310 S. St. Mary's, Suite 1920 San Antonio, Texas 78205 (210) 226-1433 mark@markstevenslaw.com

TABLE OF CONTENTS SCOPE OF PAPER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ASSAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Did two through-and-through gunshot wounds from a .40 caliber handgun meet the definition of “serious bodily injury”? . . . . . . . . . . . . . . . . . . . . . . . . . 1 Garcia v. State, 631 S.W.3d 875 (Tex. App.–Houston [14th Dist.] 2021, pet. granted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Sufficient evidence of recklessness? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Spillman v. State, 2020 WL 4013142 (Tex. App.–Dallas 2020, pet. granted)(not designated for publication) . . . . . . . . . . 2 ASSISTANCE OF COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 The “strong presumption” of reasonable professional assistance. . . . . . . . . . . 2 Hart v. State, 631 S.W.3d 458 (Tex. App.–Houston [14th Dist.] 2021, pet. granted) . . . . . . . . . . . . . . . . . . . . . . . 2 What are the limitations, if any, on the right of a defendant to withdraw a previous waiver of counsel? Must the trial court warn a defendant who initially contests his guilt, but later pleads guilty, of the dangers and disadvantages of self-representation? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Huggins v. State, 627 S.W.3d 549 (Tex. App.–Waco 2021, pet. granted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Trial counsel waived his right to object to the amended indictment, and he did not investigate or present evidence of erectile dysfunction in this case of sexual assault; did the court of appeals use the correct standard in determining that counsel was not ineffective? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Jefferson v. State, 2021 WL 2462155 (Tex. App.–Eastland 2021, pet. granted)(not designated for publication) . . . . . . . . . . . . 5

Can a defendant waive his right to counsel at a competency hearing? . . . . . . 6 i

Osorio-Lopez v. State, 2021 WL 1583890 (Tex. App.–Texarkana 2021, pet. granted)(not designated for publication) . . . . . 6 Proving prejudice on direct appeal without a motion for new trial is difficult. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Swinney v. State, 2021 WL 261568 (Tex. App.– Beaumont 2021, pet. granted)(not designated for publication) . . . . . 7 Reasonable strategy, or the inexcusable failure to investigate? . . . . . . . . . . . . 7 Pham v. State, 595 S.W.3d 769 (Tex.–Houston [14th Dist.] 2019, pet. granted)(not designated for publication) . . 7 Can the trial court forbid the lawyer to confer with his client? . . . . . . . . . . . . 8

Villarreal v. State, 596 S.W.3d 338 (Tex. App.–San Antonio 2019, pet. granted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 CHARGING INSTRUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Trial counsel waived his right to object to the amended indictment, and he did not investigate or present evidence of erectile dysfunction in this case of sexual assault; did the court of appeals use the correct standard in determining that counsel was not ineffective? . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Jefferson v. State, 2021 WL 2462155 (Tex. App.–Eastland 2021, pet. granted)(not designated for publication) . . . . . . . 9 CONFESSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Was the “cat out of the bag”? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 State v. Castanedanieto, 2021 WL 972901 (Tex. App.–Dallas, pet. granted)(not designated for publication) . . . . . . . . . . . . 10 Who has the burden when the police take a Garrity statement from an officer/defendant? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Oliver v. State, 2020 WL 4581644 (Tex. App.–Dallas 2020, pet. granted)(not designated for publication) . . . . . . . . 12 DEMONSTRATIVE EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Animation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Pugh v. State, 2019 WL 4130793 (Tex. App.–Eastland 2019, pet. granted)(not designated for publication) . . . . . . 13 ELECTION CODE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Did the special prosecutor have authority to prosecute misdemeanor violations of the Election Code and the Government Code without referrals from the Texas Ethics Commission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Ex parte Charette, 2021 WL 1538197 (Tex. App.–Houston [14th Dist.] 2021, pet. granted)(not designated for publication) . . 14

Must a voter know she is legally ineligible to vote; is submitting a provisional ballot that is later rejected “voting”? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Mason v. State, 598 S.W.3d 755 (Tex. App.–Fort Worth 2020, pet. granted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 EVADING ARREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Must the State prove that a defendant accused of evading arrest knew that the officer was making a lawful arrest? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Nicholson v. State, 594 S.W.3d 480 (Tex. App.– Waco 2019, pet. granted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 EXTRANEOUS MISCONDUCT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Proper rebuttal, similarity of evidence, and harm. . . . . . . . . . . . . . . . . . . . . . 16 Lynch v. State, 612 S.W.3d 602 (Tex. App.–Houston – 1st Dist.] 2020, pet granted) . . . . . . . . . . . . . . . . . . . . . . . 16 The “doctrine of chances:” If you doubt the strength of your case law, iii

consider citing Ian Fleming. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Valadez v. State, 2019 WL 2147625 (Tex. App.–Waco 2019, pet. granted)(not designated for publication) . . . . . . . . 17 Can a defendant force the State to stipulate to an extraneous offense to prevent the jury from hearing extensive details about that offense? . . . . . . . 18 Perkins v. State, 2020 WL 976941 (Tex. App.–Eastland 2020, pet. granted)(not designated for publication) . . . . . . 18 FORGERY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Does the forgery statute give the State absolute discretion to charge either a Class C misdemeanor or a third degree felony? . . . . . . . . . . . . . . . . . . . . . . . 19 State v. Green, 613 S.W.3d 571 (Tex. App.–Texarkana 2020, pet. granted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Correctly charging forgery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Lennox v. State, 613 S.W.3d 597 (Tex. App.–Texarkana 2020, pet. granted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 HABEAS CORPUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Is the demand for a speedy trial cognizable by pretrial writ of habeas corpus? Can Ex parte Perry benefit anyone but former-governor Perry? . . . . . . . . . . 21 Ex parte Sheffield, 611 S.W.3d 630 (Tex. App.–Amarillo 2020, pet. granted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Can a defendant use a pretrial writ of habeas corpus to complain that the statute of limitations bars his prosecution? . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Ex parte Edwards, 608 S.W.3d 325 (Tex. App.– Houston [1st Dist.] 2020, pet. granted) . . . . . . . . . . . . . . . . . . . . . . 22 Can the State appeal an order granting relief under article 11.09 of the code of criminal procedure? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 iv

State v. Garcia, 619 S.W.3d 380 (Tex. App.–Houston [14th Dist.] 2021, pet. granted) . . . . . . . . . . . . . . . . . . . . . . 23 HARASSMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Is Texas’s harassment statute facially unconstitutional, in violation of the First Amendment? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Ex parte Nuncio, 579 S.W. 3d 448 (Tex. App.– San Antonio 2019, pet granted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Are the President’s tweets annoying or offensive? Well, then, is Texas’s harassment statute vague and overbroad? . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Ex parte Barton, 586 S.W.3d 573 (Tex. App.–Fort Worth 2019, pet. granted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Another challenge to the harassment statute. . . . . . . . . . . . . . . . . . . . . . . . . . 26 Ex parte Sanders, 2019 WL 1576076 (Tex. App.–Amarillo 2019, pet. granted)(not designated for publication) . . . . . . 26 INJURY TO A CHILD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Could a jury reasonably infer that a one-year old who exhibited no developmental delays, but whose hair sample showed a high level of cocaine, suffered a serious mental deficiency, impairment, or injury by being breast-fed by her cocaineconsuming mother. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Edwards v. State, 2021 WL 2692350 (Tex. App.–Austin 2021, pet. granted)(not designated for publication) . . . . . . . . . . . . . 27 Can a defendant be punished twice for causing a single injury that caused both serious bodily injury and serious mental deficiency, impairment or injury? . . . . . 27 Nawaz v. State, 2021 WL 1884551 (Tex. App.–Dallas 2021, pet. granted)(not designated for publication) . . . . . . . . . . 27-28

JEOPARDY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Yet another opportunity for the court of criminal appeals to express its dislike of the Collateral Estoppel Doctrine. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 v

Ex parte Richardson, 2021 WL 1134458 (Tex. App.–Fort Worth 2021, pet. granted)(not designated for publication) . . . . 28 JURY CHARGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 What kind of evidence is required to raise a lesser included offense? . . . . . . . . . . 29 Chavez v. State, 2021 WL 3929046 (Tex. App.–Beaumont 2021, pet. granted)(not designated for publication) . . . . . . . . . . 30

Assuming the trial court erred when it authorized the jury to convict for murder based the nature of conduct, the objected-to error caused no harm. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Campbell v. State, 625 S.W.3d 675 (Tex. App.–Waco 2021, pet. granted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 “‘[B]eing a concept too difficult for lawyers or even for philosophers,’ the issue of causation is best left for jurors.” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Cyr v. State, 2021 WL 746395 (Tex. App.–Eastland 2021, pet. granted)(not designated for publication) . . . . . . 31 Was appellant entitled to a lesser included instruction on attempted tampering with physical evidence? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Ransier v. State, 594 S.W.3d 1 (Tex. App.–Houston [14th Dist.] 2019, pet. granted) . . . . . . . . . . . . . . . . . . . . . . 33 Is one who actually uses deadly force entitled to a charge on threats as justifiable force? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Pham v. State, 595 S.W.3d 769 (Tex.–Houston [14th Dist.] 2019, pet. granted)(not designated for publication) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33-34 Who has the burden of proving that the witness is an accomplice? . . . . . . . 34 Ruffins v. State, ___ S.W. 3d ___ 2020 WL 4782668 (Tex. App.–Austin 2020, pet. granted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34-35 vi

Pay attention to the category of your offense, especially when a trial involves multiple different offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Alcoser v. State, 596 S.W.3d 320 (Tex. App.–Amarillo 2019, pet. granted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Just because you bite a man’s ear off does not mean you cannot rationally opine that the injury was not serious. Even if you are not an expert. . . . . . 36 Wade v. State, 594 S.W.3d 804 (Tex. App.–Austin 2020, pet. granted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Was the defendant egregiously harmed by this instruction that authorized a conviction on a theory different from that pled in the indictment? . . . . . . . . 37 Castillo-Ramirez v. State, 2019 WL 3937270 (Tex. App.–San Antonio 2019, pet. granted)(not designated for publication) . . . 37 “The Penal Code provides little guidance as to exactly how a proper jury charge on voluntariness-of-conduct should be structured or worded.” No kidding. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Hervey v. State, 2019 WL 3729505 (Tex. App.–Dallas 2019, pet. granted)(not designated for publication) . . . . . . . . 38 More tests for lesser included offenses? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Lang v. State, 586 S.W.3d 125 (Tex. App.–Austin 2019, pet. granted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Is a defendant entitled to a 38.23 instruction when there is a factual dispute regarding the officer’s credibility and a conflict between his testimony and the dash camera video? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Chambers v. State, 2019 WL 1412230 (Tex. App.–Texarkana 2019, pet. granted)(not designated for publication) . . . . 40 Is a deceptive business practice a “nature-of-conduct crime” which would require that the jury be unanimous as to the underlying acts alleged? . . . . . 41 Dunham v. State, 554 S.W.3d 222 vii

(Tex. App.–Houston [14th Dist.] 2018, pet. granted) . . . . . . . . . . . . . . . . . . . . . . 41 JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 What about that pesky mandatory statute that clearly requires that a jury waiver be made, in person, in open court, and in writing? . . . . . . . . . . . . . . . 42 Rios v. State, 626 S.W.3d 408 (Tex. App.–Dallas 2021, pet. granted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Did the legislature mean it when it wrote that disputed testimony can only be “read” back to the jury? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Stredic v. State, 609 S.W.3d 257 (Tex. App.–Houston [14th Dist.] 2020, pet. granted) . . . . . . . . . . . . . . . . . . . . . . 43 JUVENILES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 40 years, or until he turns 19: What is the maximum term a child determined unfit to be tried can be kept in residential care when the State never sought the grand jury’s approval for a determinate sentence? . . . . . . . . . . . . . . . . . 44 Ex parte Brown, 591 S.W.3d 705 (Tex. App.–Fort Worth 2019, pet. granted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 MOTION FOR NEW TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Beware! The trial court may be able to prevent an amended motion for new trial by denying the original motion before the expiration of 30 days. . . . . 46 Rubio v. State, 596 S.W.3d 410 (Tex. App.–Dallas 2020, pet. granted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 OFFICIAL OPPRESSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Oppression by the warrantless arrest of one in his home for public intoxication. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Ratliff v. State, 604 S.W.3d 65 (Tex. App.–Austin 2020, pet. granted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 viii

PRETRIAL HEARINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 The defendant’s right to be present at his pretrial hearing. . . . . . . . . . . . . . . 47 King v. State, 2020 WL 5667148 (Tex. App.–Waco 2020, pet. granted)(not designated for publication) . . . . . . . . 47 PUBLIC TRIALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Another case testing the court’s resolve to enforce the Sixth Amendment’s public trial guarantee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Williams v. State, 2020 WL 2543308 (Tex. App. San Antonio 2020, pet. granted)(not designated for publication) 48-49 SEARCH AND SEIZURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Did an initially consensual encounter escalate into an investigative detention? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Monjaras v. State, 631 S.W.3d 794 (Tex. App.–Beaumont 2021, pet. granted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Are all anticipatory search warrants illegal in Texas? . . . . . . . . . . . . . . . . . . 50 Parker v. State, 2021 WL 1567882 (Tex. App.–Austin 2021, pet. granted)(not designated for publication) . . . . . . . 50 A general warrant? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Patterson v. State, 2020 WL 7257069 (Tex. App.–Waco 2020, pet. granted)(not designated for publication) . . . . . . . . 52 What is the standard for determining harm – Rule 44.2(a), or Rule 44(b) – when the error involves evidence obtained in violation of Article I, § 9 of the Texas Constitution, and inadmissible under article 38.23(a)? . . . . . . . . . . . . 52 Holder v. State, 2020 WL 7350627 (Tex. App.–Dallas 2020, pet. granted)(not designated for publication) . . . . . . . . 52 Did the affidavit for a warrant to search a cell phone sufficiently state ix

probable cause? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 State v. Baldwin, 614 S.W.3d 411 (Tex. App.–Houston [14th Dist.] 2020, pet. granted) . . . . . . . . . . . . . . . . . . . . . . 53 Exigent circumstances and the warrantless seizure of a cell phone containing Snapchat information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Igboji v. State, 607 S.W.3d 157 (Tex. App.–Houston [14th Dist.] 2020, pet. granted) . . . . . . . . . . . . . . . . . . . . . . 54 Does article 14.03 have an exigency requirement? If so, did the State meet that requirement based on the tendency of alcohol to dissipate in the blood? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 State v. McGuire, 586 S.W.3d 451 (Tex. App.–Houston [1st. Dist.] 2019, pet. granted) . . . . . . . . . . . . . . . . . . . . . . 55 Will weaving alone, whether safe or not, now constitute reasonable suspicion to stop, thus overruling Hernandez, Tarvin, and Cerny? . . . . . . . . . . . . . . . . . 56 State v. Hardin, 2019 WL 3484428 (Tex. App.–Corpus Christi 2019, pet. granted)(not designated for publication) . 56 SENTENCING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Can the trial court order restitution paid to the Attorney General to reimburse it for paying for the victim’s SANE examination? . . . . . . . . . . . . 57 Garcia v. State, 2020 WL 6750910 (Tex. App.–Austin 2020, pet. granted)(not designated for publication) . . . . . . . 57 Estoppel and the affirmative defense of due diligence. . . . . . . . . . . . . . . . . . . 58 Martell v. State, 615 S.W. 3d 269 (Tex. App.–El Paso 2020, pet. granted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Concurrent fines? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Anastassov v. State, 2020 WL 4669880 (Tex. App.–Dallas 2020, pet. granted)(not designated for publication) . . . . . . . . 59 x

SEXUAL OFFENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Lewd exhibition? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Romo v. State, 629 S.W.3d 679 (Tex. App.–San Antonio 2021, pet. granted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Proving “continuous” sexual abuse. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Witcher v. State, 2020 WL 7483953 (Tex. App.–Texarkana 2020, pet. granted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 The corpus delicti rule and indecency with a child. . . . . . . . . . . . . . . . . . . . . 61 Shumway v. State, 2020 WL 86780 (Tex. App.–Beaumont 2020, pet. granted)(not designated for publication) . . . . . 61

Can a 4-year old commit prostitution? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Turley v. State, 597 S.W.3d 30 (Tex. App.–Houston [14th Dist.] 2020, pet. granted) . . . . . . . . . . . . . . . . . . . . . 62 SPEEDY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 “Does Covid-19 and its impact displace the rights afforded in our United States and Texas Constitutions?” No, says the Amarillo Court of Appeals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Ex parte Sheffield, 611 S.W.3d 630 (Tex. App.–Amarillo 2020, pet. granted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 TAMPERING WITH EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 A double-failure of proof: the evidence was insufficient to prove that the defendant dumped the marijuana down the toilet, and, also that dumping marijuana in the toilet altered or destroyed it. . . . . . . . . . . . . . . . . . . . . . . . . 65 David v. State, 621 S.W.3d 920 (Tex. App.– El Paso 2021, pet. granted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 TAMPERING WITH A GOVERNMENTAL RECORD . . . . . . . . . . . . . . . . . . . . . 66 xi

An offense report. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 Ratliff v. State, 604 S.W.3d 65 (Tex. App.–Austin 2020, pet. granted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 THEFT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 Theft of cargo: You were sadly mistaken if you thought that you would never have to think about bills of lading after you passed the bar; or that you would never have to contemplate what it meant to be “hooked up” to a trailer. . . . 66 Joe v. State, 620 S.W.3d 834 (Tex. App.–Waco 2021, pet. granted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 VOIR DIRE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Picky, picky. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Laws v. State, 2020 WL 6051343 (Tex. App.–Texarkana 2020, pet. granted)(not designated for publication) . . . . 68 ZOOM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Can a trial court force a defendant to appear by videoconferencing, over his objection? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Lira v. State, 2021 WL 1134801 (Tex. App.–Eastland 2021, pet. granted)(not designated for publication) . . . . . . 68 Huddleston v. State, 2021 WL 1134806 (Tex. App.–Eastland 2021, pet. granted)(not designated for publication) . . . . . . 69

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SCOPE OF PAPER “Discretionary review by the Court of Criminal Appeals is not a matter of right, but of the Court’s discretion.” TEX. R. APP. PROC. 66.2. The rules enumerate five “reasons for granting review,” but also make it clear that these reasons neither control nor fully measure the Court’s discretion. TEX. R. APP. PROC. 66.3. As of January 19, 2022, petitions for discretionary review had been granted by the Texas Court of Criminal Appeals and were awaiting decision in 70 cases.

ASSAULT Did two through-and-through gunshot wounds from a .40 caliber handgun meet the definition of “serious bodily injury”? Garcia v. State, 631 S.W.3d 875 (Tex. App.–Houston [14th Dist.] 2021, pet. granted) Garcia shot his girlfriend twice with a .40 caliber handgun, resulting in two through-andthrough wounds, and sending her to the hospital where her four wounds were closed with staples.The jury found Garcia guilty of aggravated assault/serious bodily injury, and he appealed. The court of appeals reversed. A gunshot wound is not per se serious bodily injury. The complainant stayed for less than 3.5 hours at the hospital, where her four wounds were cleaned and closed with 12 staples. The treating physician expressed his opinion that she had suffered serious bodily injury, but was not asked about and did not express any opinion about the statutory criteria. The simple fact of scarring is not serious bodily injury, absent a serious cosmetic deformity. The complainant mentioned her scars but the neither the scars nor pictures of the scars were shown to the jury. The complainant did not mention the loss or impairment of any bodily member or organ. She was ambulatory when she arrived at, and when she left, the hospital. “In short, there was insufficient evidence to support the jury's finding that complainant's injuries created “a substantial risk of death” or caused “death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” The court of criminal appeals granted the State’s petition for discretionary review. Question Presented Whether the Fourteenth Court of Appeals improperly acted as a "thirteenth juror" by re-evaluating the weight and credibility of the evidence showing that the complainant's gunshot wounds constituted serious bodily injury? 1

Sufficient evidence of recklessness? Spillman v. State, 2020 WL 4013142 (Tex. App.–Dallas 2020, pet. granted)(not designated for publication) The police suspected Spillman of possessing drugs and they grabbed him, and he resisted. Both of the officers, Reeves and his partner, were injured in the struggle, and Spillman was charged with aggravated assault on a public servant. The jury was instructed on the lesser of resisting, but the jury convicted Spillman of the charged offense. The court of appeals affirmed, holding that the evidence was sufficient to prove that Spillman recklessly injured the officers. Appellant contends he could not have perceived a substantial and unjustifiable risk arising from his actions on the night of his arrest. He suggests it was Reeves's actions rather than his own that caused the officers to be injured. It was appellant's conduct of struggling with the officers that precipitated Reeves's actions, however. Even if appellant only intended to conceal evidence and prevent his arrest, he disregarded a substantial risk that his struggling could result in bodily injury to any of the officers involved in his arrest. Spillman’s petition for discretionary review was granted. Question Presented Whether the evidence is legally sufficient to support Petitioner’s convictions for two assaults on a Public Servant?

ASSISTANCE OF COUNSEL The “strong presumption” of reasonable professional assistance. Hart v. State, 631 S.W.3d 458 (Tex. App.–Houston [14th Dist.] 2021, pet. granted) Defendant was convicted of murder and when the punishment evidence closed, the 2

trial court “proposed . . . a special issue regarding sudden passion” and defense counsel told the judge that he did not want the instruction, that he did not think that the evidence raised sudden passion. So the trial court did not instruct on sudden passion. The jury assessed punishment at 30 years, and Hart appealed, asserting that counsel was ineffective for several deficiencies, including his rejection of sudden passion. The court of appeals held that counsel performed deficiently regarding sudden passion. The court held that the evidence did raise sudden passion, and counsel’s erroneous and therefore cannot count as strategy. The court concluded that counsel performed ineffectively by rejecting a sudden passion instruction. And this deficient performance was prejudicial. Viewing the record as a whole, including the jury's sentence, a “reasonable probability” exists that the jury could have rejected Hart's self-defense claim, yet found that he acted under the influence of sudden passion arising from an adequate cause. Because a “reasonable probability” exists that the jury could have assessed a lower sentence with a punishment range between two to 20 years, our confidence in the conviction is undermined. The court of criminal appeals granted the State’s petition for discretionary review. Questions Presented 1. Whether the majority opinion fails to defer to the strong presumption that trial counsel's decision not to pursue a sudden passion instruction fell within the wide range of reasonably professional assistance? 2. Whether the majority opinion's harm analysis improperly disregards the effect of the jury's rejection of appellant's theory of self-defense? What are the limitations, if any, on the right of a defendant to withdraw a previous waiver of counsel? Must the trial court warn a defendant who initially contests his guilt, but later pleads guilty, of the dangers and disadvantages of self-representation? Huggins v. State, 627 S.W.3d 549 (Tex. App.–Waco 2021, pet. granted) The trial court appointed counsel for Huggins, then accepted his waiver of counsel and allowed him to represent himself. Later, the court permitted Huggins to withdraw his waiver, and appointed him a second attorney. Then Huggins again asserted his right to 3

self-representation. Thereafter the court refused Huggins’s subsequent attempts to withdraw his waiver of counsel. Huggins pled guilty without counsel, was convicted and sentenced, and appealed. Huggins raised two issues on appeal: (1) that his waivers of counsel were not made knowingly and intelligently because the trial court did not admonish him about the dangers and disadvantages of self-representation; and (2) that the trial court denied him his statutory right to withdraw his waiver of the right to counsel under article 1.051(h) of the Texas Code of Criminal Procedure. The court of appeals disagreed and affirmed. As to the first issue, although persons claiming the right to represent themselves must generally be warned under Faretta of the dangers and disadvantages of selfrepresentation, such warnings are not required to those who plead guilty. Where a defendant appears without representation and confesses his guilt, the only issue is whether there was a voluntary, knowing, and intelligent waiver of the right to counsel. Here Huggins twice signed written waivers of counsel and nothing demonstrated he did not understand the consequences of these documents. He understood English, had a reasonable understanding of the legal process, including discovery, had been through the criminal justice system before, and said he was a college student. Based on the totality of circumstances, the record supported the trial court’s implied finding that Huggins had voluntarily, knowingly, and intelligently waived his right to counsel. As to Huggins’s second issue, article 1.051(h) provides that a defendant may withdraw his waiver of counsel “at any time.” That said, the right to withdraw a waiver is not without limits. “A trial court may deny a request to withdraw the waiver when doing so would obstruct orderly procedure and interfere with the fair administration of justice.” A defendant who has waived counsel but then seeks to reclaim that right has the burden of showing his action would not obstruct procedure or interfere with the fair administration of justice, and Huggins failed to meet that burden here. The court of criminal appeals granted Huggins’s petition for discretionary review. Question Presented 1. Is the statutory right to withdraw a waiver of counsel under article 1.051(h) absolute or subject to restrictions? 2. What admonishments does Faretta (or article 1.051) require for a defendant who initially contests guilt but later pleads guilty? 3. Did the court below correctly conclude that no Faretta admonishments were required 4

where Appellant initially contested his guilt? Trial counsel waived his right to object to the amended indictment, and he did not investigate or present evidence of erectile dysfunction in this case of sexual assault; did the court of appeals use the correct standard in determining that counsel was not ineffective?

Jefferson v. State, 2021 WL 2462155 (Tex. App.–Eastland 2021, pet. granted) (not designated for publication) Jefferson was indicted for one count of sexual assault by penetration with his sexual organ, and another count for indecency with a child by touching her breast. The State filed a motion to amend the indictment by adding two counts of sexual assault, and by adding an additional manner and means for the earlier indecency count. All counts in the indictment were alleged to have occurred on the same date. The trial granted the State’s motion to amend and Jefferson was convicted on all four counts. His motion for new trial asserting that his trial counsel was ineffective was denied. Jefferson appealed, asserting (1) that he had not been indicted by a grand jury on the two counts added by amendment; and (2) that his trial counsel was ineffective for not researching the law and facts regarding erectile dysfunction, for not adequately preparing and presenting a defense based on ED, for not securing expert testimony on ED, and for not objecting to the amended indictment. The court of appeals affirmed. As to the indictment, the court held that “[a]n indictment that is improperly amended under Article 28.10 is not void but, rather, is only voidable, and a defendant waives any error to an amended indictment by failing to object to it at trial. . . . Because the right to be indicted by a grand jury is a waivable right, convictions on counts added by an amended indictment are not void.” The court also disagreed that trial counsel was ineffective. The evidence about ED would have been a “mixed bag.” It would have been relevant to only one of the counts, and some of the evidence in the medical records would have been otherwise harmful to Jefferson. There was a conflict about whether trial counsel objected to the amended indictment. Although the record did not reflect an indictment, the appellate court believed it was compelled to assume that the trial court resolved this conflict against Jefferson when it found trial counsel not ineffective. And even if counsel did not object, trial counsel could have had a strategic reason for not objecting. Further, since counsel’s defensive theory was the same for all the offenses, his substantial rights were not affected by the amendments. Issues Presented 1. The 11th Court of Appeals erred where it decided an important question of state law, 5

specifically what constitutes an “additional or different offense” in the context of Texas Penal Code section 22.011 (a)(2), based on erroneous statutory interpretation that conflicts with decisions of the Court of Criminal Appeals. 2. The 11th Court of Appeals erred where it applied an incomplete, and therefore wrong standard to dispose of Appellant’s ineffective assistance of counsel claim.

Can a defendant waive his right to counsel at a competency hearing? Osorio-Lopez v. State, 2021 WL 1583890 (Tex. App.–Texarkana 2021, pet. granted)(not designated for publication) The court of appeals abated appellant’s appeal to determine the feasibility of a retrospective competency hearing. Appellant told the trial court he wanted to represent himself, the court allowed him to do, and he was found competent. He appealed again, this time asserting that the trial court erred in allowing him to represent himself at his competency hearing. The court of appeals agreed with appellant and reversed and remanded, ordering a new competency trial. The Sixth and Fourteenth Amendments guarantee the right to counsel at all critical events in a criminal proceeding, and this includes competency hearings. The trial court erred in permitting appellant’s counsel to withdraw without appointing new counsel. The court’s holding was not based on shortcomings in the trial court’s admonishments, but instead “on the inapplicability of the right to self-representation” in a competency hearing When the issue of the defendant's competency is pending, federal courts have concluded that a defendant may not be permitted to waive the right to counsel. . . . “These cases support a common-sense viewpoint that a defendant cannot represent himself at his own competency hearing, the purpose of which is to determine whether a defendant understands and can participate in the proceedings in the first place.” . . . . Because Osorio-Lopez should have been represented by counsel at the retrospective competency hearing, he is entitled to a new retrospective competency hearing at which he is represented by counsel. Question Presented Is a trial court presiding over a retrospective competency hearing required to force counsel on an unwilling defendant who is presumed to be competent? Proving prejudice on direct appeal without a motion for new trial is difficult. 6

Swinney v. State, 2021 WL 261568 (Tex. App.– Beaumont 2021, pet. granted) (not designated for publication) Swinney was charged with two counts of aggravated assault with a deadly weapon; he pleaded not guilty but waived his right to have the jury sentence him. The jury found him guilty, and the Court sentenced him to 8 years imprisonment. Swinney complained for the first time on appeal that his trial lawyer rendered ineffective assistance of counsel by misinforming him that the Court could give him probation if he were found guilty. The court of appeals agreed that trial counsel performed deficiently by misinforming Swinney about his eligibility for probation, but affirmed his conviction, holding that he had failed to prove prejudice. The appellate court noted that Swinney had not filed a motion for new trial, nor had he testified or filed an affidavit claiming that he would have elected the jury to assess punishment had his lawyer advised him that only the jury could give him probation, or “that the advice his attorney gave him was the sole reason he chose to go to the trial court for punishment, or whether instead, other considerations existed that played a role in that decision.” Issue Presented The Court of Appeals erred by applying the incorrect prejudice standard to determine that the Appellant cannot meet his burden to show the outcome of his trial would have been different had he been correctly advised that only the jury could consider placing him on probation. Reasonable strategy, or the inexcusable failure to investigate? Pham v. State, 595 S.W.3d 769 (Tex.–Houston [14th Dist.] 2019, pet. granted) (not designated for publication) Pham was tried for murder and requested a charge on the use deadly force, pursuant to § 9.04 of the Texas Penal Code. The trial court denied the requested charge, Pham was convicted, and he filed a motion for new trial asserting he had been denied the effective assistance of counsel at the punishment phase. The court of appeals disagreed with this argument, and with his point of error complaining of the denial of an instruction on deadly force. As to the charge issue, the court noted that appellant received an instruction on 7

self-defense. “Because he did use deadly force, rather than the threat of deadly force, he was not entitled to an instruction pursuant to section 9.04, in addition to the instruction on self-defense.” As to the claim that his lawyer was ineffective, the court acknowledged counsel’s affidavit that various of his failures at trial were not strategic, but went on to find that, examination of the entire affidavit belied this claim, and that, in fact, his strategy to prioritize self-defense over mitigation was a reasonable one. The court of criminal appeals granted Pham’s petition for discretionary review. Questions Presented 1. Whether an attorney provides ineffective assistance when he admits in an affidavit that he failed to interview any potential mitigation witnesses, he made conclusory assumptions about what those witnesses might know about appellant’s life, and his decision not to interview any potential witnesses was not based on trial strategy. (C.R. at 32932, 334-59). 2. Whether trial counsel’s failure to investigate even a single avenue of mitigation means that appellant was constructively denied any defense at all in the penalty phase of his trial and therefore prejudice is presumed. (C.R. at 329-32, 334-59). 4. Whether the Court of Appeals erred by holding that because appellant used deadly force, rather than the threat of deadly force, he was not entitled to an instruction on self-defense pursuant to Tex. Pen. Code § 9.04. (VI R.R. at 171-74; XII R.R. at 240). Can the trial court forbid the lawyer to confer with his client?

Villarreal v. State, 596 S.W.3d 338 (Tex. App.–San Antonio 2019, pet. granted) The court called an overnight recess in the middle of the defense’s direct examination of Villarreal and ordered him and his lawyer not to talk about his testimony during the overnight break. Counsel objected that this violated his Sixth Amendment right to counsel, and the objection was overruled. The court of appeals affirmed. “[I]n this matter of first impression in Texas, we conclude the trial court did not abuse its discretion in limiting Villarreal's right to confer with his counsel during an overnight recess to matters other than his ongoing trial testimony.” 8

Justice Martinez dissented, finding that the trial court’s order effectively denied him his Sixth Amendment right to counsel, that there was no need to show harm because this was structural error, but that if a harm analysis were appropriate, the error was not harmless beyond a reasonable doubt. Alternatively, Justice Martinez believed that the trial court abused its discretion by acting without reference to guiding principles established by the Supreme Court with the result that Villarreal was denied his right to the unrestricted access to his lawyer for advice. Villarreal’s petition for discretionary review was granted. Issue Presented The court of appeals erred in holding that the trial court properly limited the Appellant's ability to consult with trial counsel during an overnight recess in violation of the Appellant's Sixth Amendment right to counsel.

CHARGING INSTRUMENTS Trial counsel waived his right to object to the amended indictment, and he did not investigate or present evidence of erectile dysfunction in this case of sexual assault; did the court of appeals use the correct standard in determining that counsel was not ineffective? Jefferson v. State, 2021 WL 2462155 (Tex. App.–Eastland 2021, pet. granted) (not designated for publication) Jefferson was indicted for one count of sexual assault by penetration with his sexual organ, and another count for indecency with a child by touching her breast. The State filed a motion to amend the indictment by adding two counts of sexual assault, and by adding an additional manner and means for the earlier indecency count. All counts in the indictment were alleged to have occurred on the same date. The trial granted the State’s motion to amend and Jefferson was convicted on all four counts. His motion for new trial asserting that his trial counsel was ineffective was denied. Jefferson appealed, asserting (1) that he had not been indicted by a grand jury on the two counts added by amendment; and (2) that his trial counsel was ineffective for not researching the law and facts regarding erectile dysfunction, for not adequately preparing and presenting a defense based on ED, for not securing expert testimony on ED, and for not objecting to the amended indictment. The court of appeals affirmed. 9

As to the indictment, the court held that “[a]n indictment that is improperly amended under Article 28.10 is not void but, rather, is only voidable, and a defendant waives any error to an amended indictment by failing to object to it at trial. . . . Because the right to be indicted by a grand jury is a waivable right, convictions on counts added by an amended indictment are not void.” The court also disagreed that trial counsel was ineffective. The evidence about ED would have been a “mixed bag.” It would have been relevant to only one of the counts, and some of the evidence in the medical records would have been otherwise harmful to Jefferson. There was a conflict about whether trial counsel objected to the amended indictment. Although the record did not reflect an indictment, the appellate court believed it was compelled to assume that the trial court resolved this conflict against Jefferson when it found trial counsel not ineffective. And even if counsel did not object, trial counsel could have had a strategic reason for not objecting. Further, since counsel’s defensive theory was the same for all the offenses, his substantial rights were not affected by the amendments. Issues Presented 1. The 11th Court of Appeals erred where it decided an important question of state law, specifically what constitutes an “additional or different offense” in the context of Texas Penal Code section 22.011 (a)(2), based on erroneous statutory interpretation that conflicts with decisions of the Court of Criminal Appeals. 2. The 11th Court of Appeals erred where it applied an incomplete, and therefore wrong standard to dispose of Appellant’s ineffective assistance of counsel claim.

CONFESSIONS Was the “cat out of the bag”? State v. Castanedanieto, 2021 WL 972901 (Tex. App.–Dallas, pet. granted) (not designated for publication) The detective first read the defendant the warnings in English, and when he indicated, only “a little bit,” because he did not speak English. The detective then had the defendant read aloud a card that had the rights written in Spanish, and asked if he understood now; the defendant nodded affirmatively, but when asked if he was willing to talk to help figure out what happened, he said, “It’s cause – um – I don’t understand.” Undaunted, the detective said, “Okay, let’s talk about what happened tonight,” and the 10

defendant responded, “Yes, sir,” and incriminated himself in the ensuing questioning. Later, a magistrate advised the defendant of his rights, and the defendant requested a lawyer. The next night a Spanish-speaking detective visited the defendant in jail, read him his rights in Spanish, and, when asked if he was willing to talk, the defendant responded, “Yeah, I'm gonna tell you—I'm gonna start by basically saying what it was I was doing.” And he did. The State argued that the second statement was preceded by the proper warnings, and that the defendant properly waived his rights. The trial court disagreed and suppressed each of his statements. The State appealed, and the court of appeals affirmed the trial court’s order of suppression. The court of appeals recognized that the Supreme Court had “walked back” its “cat in the bag theory” in Oregon v. Elstad, 470 U.S. 298, 314 (1985), by holding that unless there are “deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion.” A subsequent Miranda warning will usually suffice to render a subsequent statement admissible. “In such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his rights.” Here, however, the court of appeals distinguished Elstad: But nothing in Elstad’s language requires reversal of a grant of suppression under these circumstances simply because the facts could be reweighed to possibly warrant a conclusion denying the suppression motion. Here, there is evidence to support a determination that Mr. Castanedanieto was motivated at least in part by “cat out of the bag” thinking, and nothing in the second video indisputably demonstrates he was not. [citation omitted] On this record, we conclude the trial court did not abuse its discretion by granting Mr. Castanedanieto's motion to suppress his second statement. The State’s petition for discretionary review was granted. Issue Presented Contrary to this Court’s prior decision in this case, the court of appeals expressly defied the ordinary applicable rules for examining a waiver of a defendant’s rights under Miranda and article 38.22 of the Texas Code of Criminal Procedure by applying the “cat out of the bag” coercion theory to Castanedanieto’s claim that his second police interrogation waiver was unknowing. 11

Who has the burden when the police take a Garrity statement from an officer/defendant? Oliver v. State, 2020 WL 4581644 (Tex. App.–Dallas 2020, pet. granted) (not designated for publication) Oliver was a police officer who killed a citizen. He made several written statements to the department pursuant to Garrity v. New Jersey, 385 U.S. 493, 500 (1967), which held that the 14th Amendment prohibits the use of statements obtained from a police officer under threat of removal from office in subsequent criminal proceedings. Oliver was indicted for murder, and before trial he moved to suppress evidence derived from his Garrity statements, to dismiss his indictment, and to recuse the district attorney’s office, contending that the State’s evidence had been tainted by the immunized Garrity statements. At the hearing, several officers testified that they had no knowledge of what Oliver had told the department in his Garrity statement, and that their testimony was based on their personal knowledge of the events, and on a walk-through of the shooting. The trial court denied Oliver’s motions to suppress, dismiss, and recuse, holding that the defense had not met its burden to make some showing that the State's evidence had been tainted by exposure to those immunized statements. Oliver was convicted and he appealed contending that he bore no burden in the Garrity analysis. The court of appeals disagreed and affirmed the trial court. It was appellant's burden to bring to the trial court some showing that the State's evidence had been tainted by exposure to those immunized statements. . . . We conclude that appellant made no showing that any witness was exposed to his written or recorded statements, either directly or through any law enforcement official. Thus, no evidence offered at the grand jury proceedings or at trial can be traced directly or derivatively to those statements. We likewise conclude that nothing in the record supports a suggestion that any member of the Dallas District Attorney's office—other than Lt. Rendon [who had been walled off from the rest of the office]—was aware of the Garrity statements' existence. Nor is there anything in the record indicating that Lt. Rendon participated in the investigation or presentation of appellant's case in any fashion. We find no authority concluding that the mere presence of a Garrity statement in a sealed file would support disqualifying a district attorney's office. Appellant did not carry his burden to offer a foundation for his contention that his Garrity immunity was violated either by witness testimony at the grand jury or at trial or by the presence of his statements in the District Attorney's file. 12

Oliver’s petition for discretionary review was granted. Question Presented When the prosecuting authority is in possession of an immunized statement, does the State bear the burden to demonstrate that the statement was not "used" in any way by the prosecution?

DEMONSTRATIVE EVIDENCE Animation. Pugh v. State, 2019 WL 4130793 (Tex. App.–Eastland 2019, pet. granted) (not designated for publication) Pugh was charged with murder by running over the complainant with a car. Pugh objected to three animated videoclips, that the animations did not base the deceased’s demeanor or behavior on any scientific information, and that they portrayed him as stationary and unarmed, which contradicted Pugh’s testimony that he was lunging toward him with a knife. Pugh was convicted, and he appealed. The court of appeals affirmed. Having viewed—several times—all three videoclips in the exhibit and having reviewed the testimony from the witnesses at the hearing on the motion to suppress and at trial, we cannot hold that the trial court abused its discretion when it admitted the animation into evidence. According to the testimony of the expert witnesses, the animation was a computer-generated recreation based on objective data and measurements obtained from the scene, objective evidence obtained from Appellant's pickup, and the autopsy findings. In each of the three videoclips admitted into evidence, the scene is depicted from a distance and shows nothing gruesome. We hold that the trial court did not abuse its discretion by admitting the exhibit containing these three videoclips into evidence over Appellant's objections that the animation depicted in the exhibit was speculative and unfairly prejudicial. We overrule Appellant's first issue. Pugh’s petition for discretionary review was granted. Issue Presented The Court of Appeals erred in holding the trial court acted within its discretion when it 13

allowed the State to introduce three animations to the jury which depicted the decedent Delorme as unarmed and stationary, contrary to the evidence.

ELECTION CODE Did the special prosecutor have authority to prosecute misdemeanor violations of the Election Code and the Government Code without referrals from the Texas Ethics Commission. Ex parte Charette, 2021 WL 1538197 (Tex. App.–Houston [14th Dist.] 2021, pet. granted) (not designated for publication) A special prosecutor obtained an indictment against Charette, a candidate for a countycourt-at-law position, for violation of the election code and government code, and she filed a motion to quash and a pretrial application for habeas corpus. According to Charette, the trial court had no jurisdiction because of the prosecutor's failure to properly refer the complaints or obtain a referral from the Texas Ethics Commission for matters wholly within the jurisdiction of the TEC. The trial court denied the challenges, and the court of appeals affirmed, holding that Charette’s issues were not cognizable in a pretrial habeas proceeding. The court of criminal appeals granted Charette’s petition for discretionary review. Questions Presented 1. Did the special prosecutor lack standing or authority to prosecute alleged misdemeanor violations of the Election Code and Government Code without the referral from the TEC required by Texas Government Code § 571.171? 2. Was Appellant deprived of due process when the District Attorney's office leapfrogged the TEC procedure, which was a prerequisite to prosecution?

Must a voter know she is legally ineligible to vote; is submitting a provisional ballot that is later rejected “voting”? Mason v. State, 598 S.W.3d 755 (Tex. App.–Fort Worth 2020, pet. granted) Following Mason’s conviction of, and sentence of imprisonment for, a federal felony offense, Tarrant County Elections Administration mailed her notice that her voter registration would be cancelled in 30 days if she failed to prove her entitlement to registration. When 30 days passed without response, Mason was mailed another notice that her registration had been cancelled. Following her release from prison, Mason 14

completed a provisional ballot and voted. She was later indicted and convicted of voting illegally, and she appealed. The court of appeals found the evidence of Mason’s guilt was sufficient, and affirmed her conviction. Mason’s petition for discretionary review was granted. Questions Presented 1. The Illegal Voting statute requires that "the person knows the person is not eligible to vote." Tex. Elec. Code § 64.012(a)(1). This Court's precedent, notably Delay v. State, 465 S.W. 3d 232 (Tex. Crim. App. 2014), confirms that the State must prove that the person knew her conduct violated the Election Code. Did the court of appeals err in holding that "the fact that [Ms. Mason] did not know she was legally ineligible to vote was irrelevant to her prosecution?" 2. Did the court of appeals err by adopting an interpretation of the Illegal Voting statute that is preempted by the federal Helping America Vote Act — specifically by interpreting the Illegal Voting statute to criminalize the good faith submission of provisional ballots where individuals turn out to be incorrect about their eligibility to vote? 3. In an issue of first impression, did the court of appeals misinterpret the Illegal Voting statute by holding that submitting a provisional ballot that is rejected constitutes "vot[ing] in an election"?

EVADING ARREST Must the State prove that a defendant accused of evading arrest knew that the officer was making a lawful arrest? Nicholson v. State, 594 S.W.3d 480 (Tex. App.– Waco 2019, pet. granted) The statute prohibits “intentionally flee[ing] from a person he knows is a peace officer or federal special investigator attempting lawfully to arrest or detain him.” Nicholson was convicted of evading arrest and argued that the evidence was insufficient because it did not show that he knew that the officer was “attempting lawfully to arrest or detain him.” The court disagreed that the evading statute requires proof that the defendant knew the officer was attempting a lawful arrest. “Contrary to Nicholson's assertion, many Texas cases have come to the conclusion that it is not necessary for the State to prove that 15

the defendant knew that the detention was lawful.” Additionally, according to the court, “none of this matters under the facts of this case,” since sufficiency is determined on appeal by the hypothetically correct jury charge. That is, even if the law did require proof that the defendant knew he was being lawfully arrested, the evidence here was sufficient to prove that. Questions Presented 1. Whether the plain language of the evading arrest statute requires proof of knowledge

that the attempted arrest or detention is lawful. 2. Whether it matters in this case; whether the evidence is legally insufficient to show that Nicholson knew he was being lawfully detained.

EXTRANEOUS MISCONDUCT Proper rebuttal, similarity of evidence, and harm. Lynch v. State, 612 S.W.3d 602 (Tex. App.–Houston – 1st Dist.] 2020, pet granted) Lynch was arrested in his home which he shared with Moreno. Crack cocaine was found in the house, and Moreno testified at Lynch’s trial that the drugs were hers, not Lynch’s. The trial court received into evidence two pen packets showing prior convictions for possession with intent to deliver, which were offered by the State to intent, motive, opportunity, etc. Lynch was convicted and he appealed. The court of appeals reversed. Presuming that the State had the right to impeach Moreno’s testimony that Lynch would not have approved her use of drugs, the proper way to do that was through cross examination of Moreno, and not through the introduction of the pen packets. Additionally, the court found the extraneous misconduct evidence unfairly prejudicial, in violation of Rule 403. “According to the pen packets, the two extraneous offenses occurred in 2004 and 2006, not near the time of the 2017 events recounted at trial. The record does not include whether the convictions occurred under circumstances similar to the State's theory in this case.” And, because the inadmissible evidence affected Lynch’s substantial rights, reversal was required under Rule 44.2(b) of the Texas Rules of Appellate Procedure. The court of criminal appeals granted the State’s petition for discretionary review. Issues Presented 16

1. The court of appeals erred in holding the trial judge abused her discretion in admitting into evidence two of appellant’s prior cocaine convictions in order to prove appellant’s knowledge and/or intent with regard to the cocaine recovered in the charged offense, even after a defense witness claimed appellant had no knowledge or intent to commit the charged offense. 2. The court of appeals erred in holding that, upon introducing a defendant’s prior narcotics convictions into evidence in order to prove a defendant’s knowledge and/or intent in his current narcotics prosecution, the State must also show the facts or details of the prior narcotics cases in order to show their similarity to the charged offense. 3. The court of appeals erred in holding appellant’s substantial rights were adversely affected, for the purposes of TEX. R. APP. P. 44.2(b), merely because the purported error occurred—and nothing more. The “doctrine of chances:” If you doubt the strength of your case law, consider citing Ian Fleming. Valadez v. State, 2019 WL 2147625 (Tex. App.–Waco 2019, pet. granted) (not designated for publication) Eighteen pounds of marijuana found in duffel bags in the trunk of a car in which Valadez was a passenger. His defense was that he was an innocent passenger with no knowledge of the drugs in the trunk. The State introduced evidence of nine extraneous offenses, eight of which involved marijuana, one of which involved cocaine. Valadez objected that this evidence was inadmissible to prove intent, knowledge, or to rebut his innocent-passenger defense, and that if improperly portrayed him as a habitual marijuana possessor or cocaine dealer. The court of appeals disagreed and affirmed, finding that neither Rule 404(b), nor Rule 403, were violated. Counsel’s repeated assertions of Valadez’s innocent-passenger defense during voir dir, opening statement, and cross-examination, opened the door to the extraneous misconduct evidence. This evidence rebutted that defense, and Valadez’s claim that he lacked the intent or knowledge necessary to possess the marijuana in the trunk, and its admission did not violate Rule 404(b). In so ruling, the court also made a parenthetical reference to the “doctrine of chances,” namely that “highly unusual events are unlikely to repeat themselves inadvertently or by happenstance,” and cited the well-respected legal authority “infamous James Bond villain,” Auric Goldfinger. 17

Nor was Rule 403 violated, considering the State’s need for the evidence, that it did not spend an inordinate amount of time on the evidence, that the evidence did not confuse or distract the jury, and that similar evidence came in without objection. “We cannot say that there is a “clear disparity” between the danger of unfair prejudice posed by the complained-of evidence and its probative value.” The court of criminal appeals granted Valadez’s petition for discretionary review. Questions Presented 1. Whether prior possession and use of contraband may be admitted to prove knowledge of contraband and intent to possess contraband under Rules 403 and 404(b) of the Texas Rules of Evidence. 2. Whether prior possession and use of contraband may be admitted under Rules 403 and 404(b) of the Texas Rules of Evidence to rebut the defensive theory that the defendant lacked knowledge of the presence of contraband. 3. Whether prior possession and use of contraband may be admitted under Rules 403 and 404(b) of the Texas Rules of Evidence to prove the identity of the person who possessed the contraband. 4. Whether prior possession and use of contraband may be admitted under the doctrine of chances. Can a defendant force the State to stipulate to an extraneous offense to prevent the jury from hearing extensive details about that offense? Perkins v. State, 2020 WL 976941 (Tex. App.–Eastland 2020, pet. granted)(not designated for publication) Perkins was charged with aggravated assault with a deadly weapon against a family member. The complainant testified that Perkins pushed her head into the console of a vehicle, causing an injury to her nose. Perkins testified that the complainant threw the moving vehicle’s gear into reverse or park, and that caused her head to strike the console. The State put on a former girlfriend who testified in detail about an unadjudicated extraneous offense in which Perkins had punched her repeatedly and dragged her by the hair, and that she lost consciousness and sustained multiple injuries including a brain bleed and two broken ribs. This evidence was offered to rebut Perkins defense that the complainant was injured by accident or mistake. Perkins offered to 18

stipulate to the extraneous offense to prevent the “extensive details” from being heard by the jury, but the State declined the offer. Perkins was convicted, and he appealed, arguing that the trial court erred by not permitting the stipulation. The court of appeals affirmed the conviction. “Absent circumstances not relevant here,2 the State was not required to accept Appellant's offer to stipulate.” (Here the court distinguished cases in which the defendants offered to stipulate to a jurisdictional DWI enhancement.). The trial court did not abuse its discretion by admitting the details of the extraneous offense evidence. The court granted Perkins’s petition for discretionary review. Issue Presented 2. The Court of Appeals erred in holding the trial court acted within its discretion in allowing the State to introduce extensive details about an extraneous offense during the guilt-innocence phase when Perkins was willing to stipulate to it.

FORGERY Does the forgery statute give the State absolute discretion to charge either a Class C misdemeanor or a third degree felony? State v. Green, 613 S.W.3d 571 (Tex. App.–Texarkana 2020, pet. granted) Green’s indictment alleged forgery of a $20 bill with intent to defraud or harm another. The undisputed evidence showed that he used this forged bill to purchase a $2 lighter. Under the governing statute, forgery of a writing that is or purports to be an “issue of money” is a third degree felony. Under the same statute, forgery of a $20 bill passed to obtain goods or services of less than $100.00 is a class C misdemeanor. Green moved to quash the indictment asserting that his offense was a misdemeanor over which the district court had no jurisdiction, and the trial court granted the motion. The State appealed, and the court of appeals affirmed the trial court’s dismissal order. The court of criminal appeals granted the State’s petition for discretionary review. Issues Presented 1. The Court of Appeals decided an important question of state law that has not been, but should be, settled by the Court of Criminal Appeals, concerning whether the value ladder 19

provisions of Section 32.21(e-1) of the Texas Penal Code are mandatory or whether those provisions only apply when specifically pled by the State. 2. The Court of Appeals decided an important question of state law that has not been, but should be, settled by the Court of Criminal Appeals, concerning whether the defendant’s purpose for committing the forgery offense is an element of the offense under Section 32.21(e) of the Texas Penal Code. Correctly charging forgery. Lennox v. State, 613 S.W.3d 597 (Tex. App.–Texarkana 2020, pet. granted) Lennox presented for payment three checks, each valued at $100.00 but less than $750.00, payable to him but written on the account of another. He was convicted of forgery, and the jury was instructed at punishment that the charges were state jail felonies. Lennox contended on appeal that his crimes were class B misdemeanors because of the value of the checks, and that his sentence for state jail felonies exceeded the applicable punishment range. The court of appeals agreed that this was charge error, and that it egregiously harmed Lennox. His case was reversed and remanded for a new punishment trial. The undisputed evidence established that Lennox forged the checks in question “to obtain or attempt to obtain a property or service,” and there is no evidence in the record that he did so for any other purpose. Under Section 32.21(e-1)(2), a forgery committed “to obtain or attempt to obtain a property or service” in an aggregate amount of more than $100.00 but less than $750.00 is a class B misdemeanor. The State’s petition for discretionary review was granted. Issue Presented From the appellate court’s statutory construction of Section 32.21(e-1) of the Texas Penal Code, there was no jury-charge error; but more importantly, this Court should resolve a jurisdictional conflict that now exists in Texas law as to how county and district attorneys in the State of Texas should correctly charge and prosecute criminal offenses for forgery of financial instruments – specifically, checks which, as writings, serve a historic role in the forgery statute in Texas jurisprudence and the economies of Texas the United States 20

of America.

HABEAS CORPUS Is the demand for a speedy trial cognizable by pretrial writ of habeas corpus? Can Ex parte Perry benefit anyone but former-governor Perry? Ex parte Sheffield, 611 S.W.3d 630 (Tex. App.–Amarillo 2020, pet. granted) Justice Quinn framed the question this way: Does Covid-19 and its impact displace the rights afforded in our United States and Texas Constitutions? That is the underlying question involved in this appeal. The constitutional right at issue here is found in the Sixth Amendment of the United States Constitution and article I, § 10 of the Texas Constitution. The former provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial....” U.S. CONST. amend. VI. The latter states that “[i]n all prosecutions the accused shall have a speedy public trial by an impartial jury.” TEX. CONST. art. I, § 10. This appeal comes to us from an order denying Kevin Dale Sheffield's petition for writ of habeas corpus. Through that petition, he sought to either be released from jail on a personal recognizance bond, have his bail reduced to $10,000 from $100,000, or be tried per the dictates of the aforementioned constitutional provisions. He felt himself entitled to a personal recognizance bond or a reduction in bail because he was indigent, sitting in jail, and allegedly unable to be tried due to orders issued by the governor of Texas. We reverse and remand. The court of appeals noted that neither the Governor, the Office of Court Administration, the Presiding Judge of the Court of Criminal Appeals, nor the Chief Justice of the Texas Supreme Court has the power to suspend the Constitution. “That the Supreme Court deems this true is exemplified by its caveat in paragraph 2 of its First Emergency Order subjecting the restriction imposed therein to ‘constitutional limitations.’” In a motion for rehearing the State argued that the court of appeals had no jurisdiction to grant Sheffield the relief he sought because he did so via an interlocutory appeal from an adverse ruling on his pretrial writ of habeas corpus. Relying on Ex parte Perry, 483 S.W. 3d 884 (Tex. Crim. App. 2016), the court disagreed; although the rules governing are strict, they are not immutable. For those “certain types of claims” where “the rights underlying” them “would be 21

effectively undermined if not vindicated before trial,” a pretrial writ for habeas relief may be the appropriate course of action. The constitutional claim urged by Sheffield here is one such right given the unique circumstances preventing its enjoyment. Unless addressed before trial, the denial of his entitlement to a speedy disposition cannot be vindicated when the trial judge indefinitely forgoes trial. His claim entails a substantive right to a timely disposition of the charges against him, which right is being effectively undermined through administrative fiat. These circumstances satisfy the very criteria used in Perry to justify deviation from historical limitations imposed on the availability of habeas relief. So, we disagree with the State, conclude that we have jurisdiction over the claim and deny rehearing. The court of criminal appeals granted the State’s petition for discretionary review, and, on its own motion, raised another question. Questions Presented 2. Are speedy trial claims cognizable on pretrial habeas if the applicant asks for a speedy trial rather than a dismissal? 3. Did the court of appeals improperly reverse the trial court’s ruling for what the trial court said instead of what she did? Court’s own motion Did the trial court have jurisdiction to hold a trial while the State’s petition for discretionary review was pending in this Court? Can a defendant use a pretrial writ of habeas corpus to complain that the statute of limitations bars his prosecution? Ex parte Edwards, 608 S.W.3d 325 (Tex. App.– Houston [1st Dist.] 2020, pet. granted) Fourteen years after the commission of the crime alleged, the State indicted Edwards for aggravated sexual assault of an adult. He filed a pretrial application for writ of habeas corpus asserting that prosecution was barred by the 10-year statute of limitations, in violation of the State and Federal Constitutions, and article 12.01 of the Texas Penal Code. The trial court denied relief, and the court of appeals reversed.

The court of appeals held that an applicant may use a pretrial writ to raise the statute of limitations where the charging instrument shows on its face that the prosecution is barred. “Limitations is an absolute bar to prosecution.” The court observed that generally, the statute of limitations for aggravated sexual assault of an adult is 10 years, but that there is no limitation if biological material was collected during the investigation and DNA-tested, but did not match the victim, or any other person whose identity was “readily ascertained.” The court rejected the State’s argument that the exception applied here, because there was no evidence that forensic testing results showed that the DNA did not match a person whose identity was “readily ascertained.” The State’s petition for discretionary review was granted. Issues Presented 1. The First Court erred by holding that a shotgun objection and a complaint about another part of the statute preserved the appellant's appellate argument. This conflicts with this Court's holding in Resendez. 2. The First Court erred by holding that the State had to admit DNA test results at a pretrial habeas hearing challenging the validity of the charging instrument. 3. This limitations claim is not cognizable on pretrial habeas because it is a fact-intensive non-constitutional defense. The appellant has an adequate remedy at law through a motion to quash. Can the State appeal an order granting relief under article 11.09 of the code of criminal procedure? State v. Garcia, 619 S.W.3d 380 (Tex. App.–Houston [14th Dist.] 2021, pet. granted) Garcia filed an application for writ of habeas corpus under article 11.09 of the code of criminal procedure asserting that his plea of guilty to an information charging misdemeanor theft was involuntary because he had not been advised of the immigration consequences. The trial court granted relief, and the State appealed. The court of appeals held that the State has no right to appeal an order from the trial court granting relief under article 11.09. No right to appeal is explicitly provided by article 44.01 of the code of criminal procedure. The court also rejected the State’s 23

argument that article 44.01(a)(3) allowed the appeal because the court’s ruling had the effect of granting a new trial. Likewise, the court of appeals rejected the State’s argument that article 44.01(a)(2) authorized the appeal, because the trial court’s order was tantamount to an order granting a motion in arrest of judgment. “Having determined that the State's appeal does not properly invoke the jurisdiction of the court, we dismiss the appeal for want of jurisdiction.” The State’s petition for discretionary review was granted. Issues Presented The Fourteenth Court of Appeals misconstrued Article 44.01 of the Texas Code of Criminal Procedure and erred in concluding that the State does not have the right to appeal the trial court’s order granting relief in a habeas corpus proceeding brought under Article 11.09 of the Texas Code of Criminal Procedure when the trial court’s order functionally served to either grant a new trial or to dismiss the information—both of which would constitute an appealable order under Article 44.01(a).

HARASSMENT Is Texas’s harassment statute facially unconstitutional, in violation of the First Amendment? Ex parte Nuncio, 579 S.W. 3d 448 (Tex. App.– San Antonio 2019, pet granted) Nuncio was charged with harassment and he filed a pretrial application for writ of habeas corpus challenging the statute, T EX. PENAL CODE ANN. § 42.07, as facially unconstitutional. When the trial court denied relief, Nuncio took an interlocutory appeal. The court of appeals affirmed the trial court. “Based on the foregoing analysis, we hold sections 42.07(a)(1) and (b)(3) of the Texas Penal Code are neither unconstitutionally overbroad nor vague.” Justice Rodriguez dissented. The court of criminal appeals granted Nuncio’s petition for discretionary review: Issues Presented 1. Justice Rodriguez's dissent contains the same criticisms of the challenged statute that were addressed in 1983 by the U.S. Fifth Circuit Court of Appeals in Kramer v. Price. Kramer v. Price struck down the previous version of Penal Code § 42.07. The defects described in Justice Rodriguez's dissent and in Kramer v. Price have not been resolved. 24

2. The Fourth Court of Appeals' decision, and the text of the challenged statute depart from accepted social norms and common understandings of the meaning of the word "harassment." The Fourth Court's majority opinion, and the challenged statute, risk the criminalization of conduct that would not generally be considered ‘criminal' by people of ordinary intelligence. Further, because of this disconnect between common sense and the text of the statute, the challenged statute chills emotional speech, hyperbolic speech, metaphor, sharply critical speech and sexual overtures; TRAP § 66.3 (f). 3. Texas Courts' attempts to construe § 42.07 have led to baffling decisions that show no discernible logic or pattern that can be followed. The resulting authorities constitute a case by case evaluation of whether the subject speech makes reference to an "ultimate sex act." As a result of this lack of clear guidance, the statute is overly broad and chills too much speech. 4. The Court of Appeals should settle this important question because the statute unconstitutionally delegates prosecutorial decision-making and because the potential chilling effect is broad, TRAP § 66.3(b). Are the President’s tweets annoying or offensive? Well, then, is Texas’s harassment statute vague and overbroad? Ex parte Barton, 586 S.W.3d 573 (Tex. App.–Fort Worth 2019, pet. granted) Barton was charged by information with harassment for sending electronic text messages or email communications to his ex-wife. His motion to quash the information asserting that § 42.07(a)(7) is unconstitutional was overruled. Barton then filed an application for writ of habeas corpus, again challenging the constitutionality of § 42.07(a)(7), and the trial court denied relief. Barton took an interlocutory appeal. The court of appeals reversed the trial court’s order denying relief, finding, first, that the statute affected protected speech, and then that it was facially vague and overbroad. Experience has taught us that whether the President's tweets—or an ex-spouse's emails—are annoying or offensive is a highly subjective inquiry, and the view of whether these communications are innocuous, humorous, annoying, or offensive will differ greatly from person to person. [citations omitted] Consequently, we agree with Barton that the electronic-communications subsection is facially unconstitutional as vague and overbroad; as such, it is void and unenforceable. 25

Issue and Question Presented 1. The court of appeals decided a facial overbreadth claim that was not preserved at trial or raised on appeal. 2. Is Tex. Penal Code § 42.07(a)(7), which prohibits harassing electronic communications, facially unconstitutional? Another challenge to the harassment statute. Ex parte Sanders, 2019 WL 1576076 (Tex. App.–Amarillo 2019, pet. granted) (not designated for publication) The information alleged harassment, specifically that “with intent to harass, annoy, alarm, abuse, torment, or embarrass [the complainant]” [Sanders] sent “repeated electronic communications to [the complainant] in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another, to-wit: telephone calls, text messages, social media messages, handwritten letters, and in person communication.” Prior to trial, Sanders filed an application for writ of habeas corpus and motion to quash information, arguing that TEX. PENAL CODE ANN. § 42.07(a)(7) is “facially overbroad” in “violation of the First Amendment of the United States Constitution.” The trial court denied the application, and Sanders appealed. The court of appeals affirmed, noting that it did “not write on a clean slate. . . . [W]e find the repeated electronic communications the section proscribes, made with the ‘intent to inflict emotional distress for its own sake’ . . . are not protected speech under the First Amendment because they invade the substantial privacy interests of the victim ‘in an essentially intolerable manner.’” The court of criminal appeals granted Sanders petition for discretionary review. Issue Presented Texas Penal Code section 42.07(a)(7) is a content-based restriction that restricts a real and substantial amount of speech as protected by the First Amendment; speech which invades privacy interests of the listener has never been held by the United States Supreme Court to be a category of unprotected speech.

INJURY TO A CHILD 26

Could a jury reasonably infer that a one-year old who exhibited no developmental delays, but whose hair sample showed a high level of cocaine, suffered a serious mental deficiency, impairment, or injury by being breast-fed by her cocaineconsuming mother. Edwards v. State, 2021 WL 2692350 (Tex. App.–Austin 2021, pet. granted) (not designated for publication) Child Protective Services analyzed a hair sample from L.B., Edwards’s one-year old daughter and found the presence of cocaine and cocaine metabolites. Edwards was nursing the baby, and admitted she had recently ingested cocaine. The child was removed from Edwards home and placed with a guardian, and Edwards was indicted for injury to a child for or causing her to suffer serious mental deficiency, impairment, or injury by allowing her to ingest cocaine. At trial a doctor testified that the child was small for her age and that she had been clingy and fussy during an examination. Testing showed no developmental delays at the time of testing. The owner of the company that tested the child’s hair testified that it showed a high level of cocaine, and about the physical and mental effects associated with cocaine consumption. The jury convicted Edwards and she appealed asserting that the evidence was no evidence of any “mental deficiency, injury or impairment to the child due to the ingestion of the cocaine. The court of appeals disagreed, and affirmed. Viewing the evidence in the light most favorable to Edwards's conviction, the jury could have reasonably inferred that L.B. had ingested an amount of cocaine sufficient to make her addicted and that she experienced withdrawal symptoms after having been removed from Edwards's custody. . . . Similarly to how courts have determined that evidence that a child suffered from post-traumatic stress disorder established that the child suffered from the type of deficiency, impairment, or injury contemplated by the Penal Code . . . we believe that the evidence in this case demonstrating that L.B. became addicted to cocaine and experienced withdrawal is sufficient to establish that L.B. suffered from a serious mental deficiency, impairment, or injury. . . . The court of criminal appeals granted Edwards’s petition for discretionary review. Issue Presented The Court of Appeals erred in holding that evidence of a high level of cocaine in a child's body alone is sufficient to prove that the child suffered "serious mental deficiency, impairment or injury," as required for conviction of injury to a child. Can a defendant be punished twice for causing a single injury that caused both serious bodily injury and serious mental deficiency, impairment or injury? Nawaz v. State, 2021 WL 1884551 27

(Tex. App.–Dallas 2021, pet. granted) (not designated for publication) Nawaz was convicted in a single trial of two counts of injury to a child, the first for causing serious bodily injury, and the second for causing serious mental deficiency, impairment, or injury in violation of section 22.04(a) of the Texas Penal Code. The court of appeals held that “the State did not prove two separate and distinct incidents of injury. AR’s injury was non-accidental abusive head trauma caused by a whip-lash type movement of her head. This single injury caused both the hemorrhaging in A.R.'s retinas and the holes in A.R.'s brain. Accordingly, on the particular facts of this case, appellant cannot be punished twice for medical conditions caused by one incident of injury to A.R.” The court of criminal appeals granted the State’s petition for discretionary review. Question Presented In concluding that Appellant’s convictions for injury to a child causing serious bodily injury and injury to a child causing serious mental deficiency, impairment, or injury violated double jeopardy, did the court of appeals erroneously focus on the transaction rather than the result?

JEOPARDY Yet another opportunity for the court of criminal appeals to express its dislike of the Collateral Estoppel Doctrine. Ex parte Richardson, 2021 WL 1134458 (Tex. App.–Fort Worth 2021, pet. granted) (not designated for publication) Richardson and Polk were initially charged with the capital murder of Robinson during the course of aggravated robbery. The State claimed that Polk shot Richardson twice within an hour. The first shots did not kill him. Robinson’s friend, Levi, attempted to drive him to the hospital, and Polk shot both Robinson and Levi. Robinson died, but Levi survived and testified at the capital murder trial. Richardson and Polk were tried separately; Polk was convicted of capital murder, and Richardson was acquitted as a party to the offense. Following his acquittal, the State indicted Richardson for the aggravated robbery and the aggravated assault of Levi, and Richardson filed a pretrial application for writ of habeas corpus, asserting that the charges were barred by the doctrine of collateral estoppel. The trial court agreed with Richardson regarding the aggravated robbery charge, and granted relief, but denied relief as to the aggravated assault charge. 28

Richardson appealed, and the court of appeals reversed the order of the trial court that denied the pretrial application for writ of habeas corpus. The court of appeals held that the State was collaterally estopped from relitigating in a second trial an issue that a jury had already determined, namely, that Richardson was not a party to the shootings. Given the pleadings, the jury charge, the disputed issues, and the evidence presented at trial, the jury in the first trial necessarily decided that Richardson was not a shooter and that he had been merely present rather than an accomplice to Polk's acting as the shooter. [citations omitted]. Because the jury had already acquitted Richardson of murder by shooting with the requisite mental state, either as the actual shooter or as a party, the question of whether Richardson was the shooter was decided in the first trial. Accordingly, the trial court erred by denying Richardson's request to dismiss the aggravated assault charge. The State’s petition for discretionary review was granted. Questions Presented 1. Does collateral estoppel bar the State from prosecuting a defendant for conduct occurring at a different time and place than the original conduct for which the defendant was acquitted? 2. Does collateral estoppel mean that a defendant's mental state cannot change due to intervening circumstances between the original conduct for which he was acquitted and the subsequent conduct for which he remains charged? 3. Does collateral estoppel mean that a defendant whose ongoing conduct may constitute multiple criminal offenses can only be prosecuted for a single offense despite the conduct occurring in different places, at different times and with intervening circumstances between the originally-prosecuted conduct and the potentially-prosecutable latter conduct? 4. Does the Court of Appeals' expansive view of collateral estoppel implicitly resuscitate the long-abandoned carving doctrine limiting prosecution to a single offense when justice and reason demand prosecution for each potential criminal misconduct?

JURY CHARGE What kind of evidence is required to raise a lesser included offense?

Chavez v. State, 2021 WL 3929046 (Tex. App.–Beaumont 2021, pet. granted) (not designated for publication) Chavez was convicted of capital murder, and he complained on appeal that the trial court erred in not submitting the lesser included offenses of kidnapping and felony murder. The court of appeals agreed and reversed. Chavez’s defense was that he did not participate in a kidnapping, and this would ordinarily justify denying instructions on lesser offenses. Here, though, there was some evidence from Chavez’s accomplice Flores from which the jury could have found that Chavez committed only kidnapping or felony murder, On this record, the jury could have believed Flores's testimony that the group decided to kidnap complainants but disbelieved his testimony that appellant was involved in a plan to kill them. See id. Accordingly, the trial court erred in failing to submit jury instructions on kidnapping and felony murder. The court of criminal appeals granted the State’s petition for discretionary review. Questions Presented 1. Is the fact of a witness's inconsistency coupled with the jury's prerogative to disbelieve part of his testimony affirmative evidence that supports submission of a lesser-included offense? 2. While evidence can be "weak, impeached, or contradicted" and still raise a lesser-included offense, shouldn't inferences be required to be supported by facts before they can?

Assuming the trial court erred when it authorized the jury to convict for murder based the nature of conduct, the objected-to error caused no harm. Campbell v. State, 625 S.W.3d 675 (Tex. App.–Waco 2021, pet. granted) Campbell was charged with murder by strangulation, and the court’s charge provided the jury with several theories on which to convict, one of which was that Campbell intentionally caused the complainant’s death. The abstract portion of the charge defined “intentionally” in relation to both the result of conduct and the nature of conduct. The trial court overruled Campbell’s objection that murder was not a “nature of conduct” offense. Campbell was convicted and he appealed. The court of appeals affirmed the conviction. “Assuming without agreeing that the trial court erred in charging the jury on the definition of intentionally, we find that any error was harmless. . . . The jury could have 30

convicted Campbell by finding that he intentionally caused the death of Wright in that he intended the result of his conduct or that he knowingly caused the death of Wright. Because the jury charge provided alternative manner and means as well as alternative mental states, Campbell has not shown actual harm in the jury charge.” In finding any error harmless, the court also considered “state of the evidence, and the argument of counsel.” Chief Justice Gray, as he often does, had an interesting dissent. And if this were a civil proceeding, there would be no question about what we had to do. If the jury is charged on both a proper and an improper theory of liability and the charge is objected to by the party against whom the question is answered, the error in the charge is harmful because the party is unable to know, and therefore unable to show on appeal, that the answer is based on the improper theory. See Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 389 (Tex. 2000). The test to overturn a civil judgment for money because of jury charge error is thus easier to meet than when the result might be an erroneous life conviction in a criminal case. If just one juror looked at the definition of intentionally and voted to convict appellant of murder because, at the very least appellant intended to choke Jade (nature of conduct) and she died as a result, appellant has been convicted on conduct that is not murder and had no ability to show actual harm. The definition erroneously given takes from appellant his only viable defense against the charge of murder. [emphasis supplied] Campbell’s petition for discretionary review was granted. Question Presented Did the jury charge in a case that involved autoerotic asphyxiation for the other participant, and contained an incorrect definition of “intentionally,” which allowed the jury to find the Appellant guilt merely by finding that he intended the action, rather than intending the result, cause harm. “‘[B]eing a concept too difficult for lawyers or even for philosophers,’ the issue of causation is best left for jurors.” Cyr v. State, 2021 WL 746395 (Tex. App.–Eastland 2021, pet. granted) (not designated for publication)

Cyr and Justin were married. One of their children testified that Justin was choking their four month old in the living room, telling her to “shut up.” Cyr came from the kitchen and told Justin to stop hurting the baby. Another child testified that she had seen Justin choke the baby before but this child was unsure whether she told Cyr about the prior chokings, or that Cyr knew about these prior chokings. Neither child saw the baby being shaken. Soon after Cyr intervened, the baby became limp and pale and flailed her arms about for 20 minutes, then began acting normal again. They called Justin’s mother, a retired nurse, who advised them to give the baby Tylenol and they did. They did not take the baby to the hospital. The next day the baby had spasms and the parents took her to the hospital. Justin told the police they did not take the baby to the hospital earlier because he did not trust the doctors there. Later in the summer, Cyr told her mother that they did not take the baby to the hospital because Justin wanted to avoid CPS. Cyr and Justin both repeated the claim that the symptoms had been caused by a “hard bowel movement.” Neither mentioned Justin’s actions. Medical testimony ruled out the hard bowel movement and established that the injuries were consistent with violent shaking. Cyr was charged with recklessly causing serious bodily injury by either failing to protect her from Justin, or by failing to seek reasonable medical attention. The trial court refused Cyr’s request to instruct the jury on concurrent causation; the jury convicted her and sentenced her to 15 years imprisonment. The court of appeals reversed. The court did not find that Cyr’s conduct was in fact insufficient to cause the baby’s injuries. “ Our decision merely holds that the record contains some evidence, when viewed in the light most favorable to [Cyr], indicating that [Cyr's] conduct was clearly insufficient.” And the court found that this charge error caused some harm to Cyr. The State’s petition for discretionary review was granted. Questions Presented 1. Does the concept of current causation, TEX. PENAL CODE § 6.04(a), apply to the results caused by third parties for which the defendant is criminally responsible? 2. Is ambivalence over the amount of serious bodily injury directly attributable to the defendant evidence that her conduct was clearly insufficient to cause any serious bodily injury? Was appellant entitled to a lesser included instruction on attempted tampering with physical evidence? 32

Ransier v. State, 594 S.W.3d 1 (Tex. App.–Houston [14th Dist.] 2019, pet. granted) The trooper saw Ransier trying to shove a syringe under his car seat and break it. A struggle ensued, Ransier wound up on the ground, where he threw the syringe, and it landed a few feet away. The tip of the needle was broken off and never found. Later he was asked if he was trying to break the syringe or get rid of it, and he admitted, “That was the intention, yes sir.” Ransier was charged with tampering with physical evidence, and the trooper testified Ransier concealed the syringe from him, and that he altered syringe both by moving it, and by breaking it. The trooper admitted he did not know if the needle broke when Ransier fell to the ground. Ransier’s request that the jury be instructed on the lesser included offense of attempted tampering with physical evidence was denied, and he was convicted. The court of appeals found that the trial court erred in not instructing on the lesser. Appellant makes this argument with respect to each alternative statutory theory on which the jury was charged. Appellant argues that a jury could have rationally found him only guilty of attempted tampering with regard to altering the syringe. Appellant argues that a jury could have rationally found him only guilty of attempted tampering with regard to destroying the syringe. Appellant argues that a jury could have rationally found him only guilty of attempted tampering with regard to concealing the syringe. We agree. Appellant shows more than a scintilla of evidence directly germane to attempted tampering was presented at trial. The State’s petition for discretionary review was granted. Question Presented 1. When—as the Ransier Dissent recognizes—the record does not support a rational conclusion that if Appellant was guilty of anything, it was only attempted tampering, should the Fourteenth Court have nevertheless reversed Appellant's conviction because of the failure to include a ‘lesser-included offense' instruction to which he was not entitled? Is one who actually uses deadly force entitled to a charge on threats as justifiable force? Pham v. State, 595 S.W.3d 769 33

(Tex.–Houston [14th Dist.] 2019, pet. granted) (not designated for publication) Pham was tried for murder and requested a charge on the use deadly force, pursuant to § 9.04 of the Texas Penal Code. The trial court denied the requested charge, Pham was convicted, and he filed a motion for new trial asserting he had been denied the effective assistance of counsel at the punishment phase. The court of appeals disagreed with this argument, and rejected his point of error complaining of the denial of an instruction on deadly force. As to the charge issue, the court noted that appellant received an instruction on self-defense. “Because he did use deadly force, rather than the threat of deadly force, he was not entitled to an instruction pursuant to section 9.04, in addition to the instruction on self-defense.” As to the claim that his lawyer was ineffective, the court acknowledged counsel’s affidavit that various of his failures at trial were not strategic, but went on to find that, examination of the entire affidavit belied this claim, and that, in fact, his strategy to prioritize self-defense over mitigation was a reasonable one. The court of criminal appeals granted Pham’s petition for discretionary review. Questions Presented 1. Whether an attorney provides ineffective assistance when he admits in an affidavit that he failed to interview any potential mitigation witnesses, he made conclusory assumptions about what those witnesses might know about appellant’s life, and his decision not to interview any potential witnesses was not based on trial strategy. (C.R. at 329-32, 334-59). 2. Whether trial counsel’s failure to investigate even a single avenue of mitigation means that appellant was constructively denied any defense at all in the penalty phase of his trial and therefore prejudice is presumed. (C.R. at 329-32, 334-59). 4. Whether the Court of Appeals erred by holding that because appellant used deadly force, rather than the threat of deadly force, he was not entitled to an instruction on self-defense pursuant to Tex. Pen. Code § 9.04. (VI R.R. at 171-74; XII R.R. at 240). Who has the burden of proving that the witness is an accomplice? Ruffins v. State, ___ S.W. 3d ___ 2020 WL 4782668 34

(Tex. App.–Austin 2020, pet. granted) Ruffins was charged with joining others in committing an aggravated robbery, and some of his alleged accomplices testified against him. Hogarth was named as an accomplice as a matter of fact in the jury charge; Trevino was an accomplice as a matter of law. Ruffins was convicted, he appealed, and the court of appeals reversed. The court of appeals held that the trial court erred by instructing the jury that it only needed to require corroboration of Hogarth’s testimony if it found him to be an accomplice beyond a reasonable doubt. This inverted the legal test which says that the jury must find the witness to be an accomplice unless it is shown beyond a reasonable doubt that he is not. The court also found that the defense did not invite the error, nor did he waive it when he responded he was “good”, and that the erroneous charge egregiously harmed Ruffins. The court of criminal appeals granted the State’s petition for discretionary review. Questions Presented 1. If the testimony from an alleged accomplice witness-in-fact is completely removed from consideration, where the jury charge contained two accomplice witness instructions —one clearly correct regarding the accomplice as a matter of law—and there was substantial non-accomplice evidence to corroborate either accomplice witness's testimony, did Appellant suffer egregious harm from any alleged error in the accomplice-in-fact instruction? 2. Did Appellant invite—or is he otherwise estopped from challenging—the allegedly erroneous instruction he requested and now complains of on appeal? 3. Was Appellant even entitled to an instruction on whether Hogarth was an accomplice as a matter of fact? 4. In a case where the Defense argues a witness was an accomplice, who bears the burden to prove a witness's status as an accomplice as a matter of fact, and what is the appropriate burden? Pay attention to the category of your offense, especially when a trial involves multiple different offenses. Alcoser v. State, 596 S.W.3d 320 (Tex. App.–Amarillo 2019, pet. granted) 35

Alcoser was charged with three different crimes: felony assault (family violence by choking); child endangerment; and interference with a 911 call. He was convicted of all three, and complained on appeal that he had been egregiously harmed by the court’s erroneous jury charge. The court of appeals reversed, finding a host of charge errors, which, when considered cumulatively, caused Alcoser egregious harm and required reversal. First, the court begins with lengthy tutorials on, generally, the function of the jury charge, and specifically, the three different categories of offenses respecting culpable mental states: “result-of-conduct”; nature-of-conduct”; and “circumstances-of-conduct.” Then the appellate court reminded that trial courts must be careful, when trying multiple offenses, to “carefully distinguish the culpable mental states applicable to each offense—because the failure to do so is error.” Here the trial court was far from careful, and the court of appeals pointed out one mistake after the other: at no point did the court set out abstractly the elements of child endangerment or interference with a 911 call; the court made no distinction between the various possible definitions of culpable mental states applicable to the three different offenses; the charge impermissibly commented on the weight of the evidence; the charge on self-defense was arguably limited to only one of the three offenses; the charge did not properly apply the law of self-defense to the facts of the case; the charge on self-defense did not define “reasonable belief”; the charge did not recite the presumption of reasonableness. Issues Presented 1. The court of appeals misapplied the egregious harm standard of review for unobjected-to jury charge error under Almanza v. State, 686 S.W. 2d 157 (Tex. Crim. App. 1984), in a manner that so far departed from the accepted and usual course of judicial proceedings as to call for an exercise of the Court of Criminal Appeals' power of supervision. 2. The court of appeals' misapplication of the cumulative error doctrine in its analysis of unobjected-to jury charge error so far departed from the accepted and usual course of judicial proceedings as to call for an exercise of the Court of Criminal Appeals' power of supervision. Just because you bite a man’s ear off does not mean you cannot rationally opine that the injury was not serious. Even if you are not an expert.

Wade v. State, 594 S.W.3d 804 (Tex. App.–Austin 2020, pet. granted) Sughrue testified that Wade bit his ear, and “ripped [it] away a little bit from his actual head,” resulting in the loss of his earlobe which “devastated” him, and caused him permanent disfigurement. Wade admitted the biting, but said he did not intend to sever the lobe. “Wade acknowledged that Sughrue's ear was disfigured but denied that Wade suffered serious bodily injury and further stated that if he saw Sughrue on the street and did not know who Sughrue was, he would be unable to notice any difference between Sughrue's two ears.” Wade was tried for aggravated assault by causing serious bodily injury, and requested an instruction on the lesser included offense of assault. The trial court refused the instruction, Wade was convicted, and he appealed. The court of appeals first held that the evidence was sufficient to establish that Sughrue suffered serious bodily injury. But the court reversed the trial court for refusing to instruct on the lesser included offense. Wade denied more than once that his actions seriously injured Sughrue, and, as noted he explained that, if he did not know Sughrue and saw him on the street, the injury would not be noticeable. The court held that testimony from a defendant, even if he is not an expert, can be sufficient to raise the need for a lesser included offense. “[W]e we conclude that more than a scintilla of evidence was presented during trial that negated the greater offense of aggravated assault by causing serious bodily injury and raised the lesser offense of assault by causing bodily injury and that the district court erred by denying Wade's request for a lesser included offense instruction for assault.” The State’s petition for discretionary review was granted. Question Presented 1. Whether conclusory lay testimony can contradict undisputed testimony from medical sources and a victim on the issue of serious bodily injury such that a lesser-included offense is a “valid, rational alternative” to the charged offense. Was the defendant egregiously harmed by this instruction that authorized a conviction on a theory different from that pled in the indictment? Castillo-Ramirez v. State, 2019 WL 3937270 (Tex. App.–San Antonio 2019, pet. granted) (not designated for publication) 37

The indictment alleged that Ramirez penetrated the complainant's anus with his sexual organ, but the jury charge allowed the jury to convict him if it found he had penetrated the complainant's anus “by any means.” Thus, the “charge enlarged the offense alleged and authorized the jury to convict Ramirez on a different theory than the one that was alleged in the indictment.” And the error was reversible, even though no objection was made at trial. “Because the jury charge affected the very basis of the case and vitally affected Ramirez's defensive theory, we hold the erroneous charge resulted in Ramirez suffering egregious harm.” The State’s petition for discretionary review was granted. Question Presented Can error in a sexual-assault charge–which fails to specify that the defendant used his penis–be harmful when there was no evidence or claim that he used anything else? “The Penal Code provides little guidance as to exactly how a proper jury charge on voluntariness-of-conduct should be structured or worded.” No kidding. Hervey v. State, 2019 WL 3729505 (Tex. App.–Dallas 2019, pet. granted) (not designated for publication) Hervey and Hawkins disagreed on the terms of a drug deal, and Hervey drew his gun, just to scare Hawkins. They struggled over the gun, and, according to Hervey, Hawkins pulled on the gun, Hervey pulled back, his finger slipped from the trigger guard to the trigger, and the gun went off. Hawkins died, and Hervey was tried for murder. The court charged the jury sua sponte on voluntariness with regard to murder. Specifically, the court instructed, that for an act to be criminal, it must be voluntary, and that conduct is not involuntary just because the actor did not intend the results. Although the court also instructed on the lesser included offenses of manslaughter and criminally negligent homicide, neither of those instructions contained instructions on voluntariness. Hervey was convicted of murder and he appealed. The court of appeals reversed. The question here was not whether Hervey was entitled to an instruction on voluntariness; he was, and he got an instruction. Rather the question was whether the instruction given was adequate to guide the jury in its deliberations. The court held that it was not. “The Penal Code provides little guidance as to exactly how a proper jury charge on voluntariness-of-conduct should be structured or 38

worded.” Only a few Texas cases have addressed the sufficiency of a voluntariness instruction. That said, the court of appeals believed that this instruction was inadequate for at least three reasons. First, the instruction was “incomplete” because it did not instruct the jury that it should acquit if it found that the shooting was caused by Hawkins’s independent act of pulling on the gun which caused Hervey to pull the trigger. Second, there was no instruction applying the law of voluntariness to the lesser included offenses of manslaughter and criminally negligent homicide. Third, Texas law distinguishes between culpable mental states and voluntariness, and the charge given here did not make that distinction. The charge given here was erroneous, and caused “some harm” to Hervey. The State’s petition for discretionary review was granted. Questions Presented 1. Does a trial court's sua sponte submission of an issue in the jury charge prevent a court of appeals from considering whether the evidence raised such an issue? 2. If, under a defensive view of the evidence, the defendant in a murder case drew, pointed, and wrestled over the gun of his own volition, is he nonetheless entitled to a voluntary-act instruction if testimony shows that another person's conduct precipitated the gun's discharge? 3. Alternatively, should a voluntary-act instruction resemble the instruction in Simpkins v. State, 590 S.W.2d 129 (Tex. Crim. App. [Panel Op.] 1979), and specify the facts that would render the defendant's conduct involuntary or inform the jury that voluntariness is distinct from the culpable mental state? 4. Alternatively, does an instruction result in some harm to the defense if it lacks this specificity and is missing from lesser-included-offense instructions never reached by the jury? More tests for lesser included offenses? Lang v. State, 586 S.W.3d 125 (Tex. App.–Austin 2019, pet. granted) The Texas Court of Criminal Appeals found the evidence legally insufficient to prove that Lang committed the offense of organized retail theft, and remanded to the court of appeals to determine whether the conviction could be reformed to some lesser 39

included offense. The court of appeals held that neither the offense of attempted organized retail theft nor the offense of theft of property were lesser included offenses in this case. The State’s petition for discretionary review was granted. Question Presented Is reformation unauthorized unless the State pled all the elements and statutorily required notice allegations of the lesser-included offense? Is a defendant entitled to a 38.23 instruction when there is a factual dispute regarding the officer’s credibility and a conflict between his testimony and the dash camera video? Chambers v. State, 2019 WL 1412230 (Tex. App.–Texarkana 2019, pet. granted) (not designated for publication) Chambers was stopped by an officer who believed the truck had no rear license plate. Pictures take after the fact proved that the truck did have a paper plate, and, according to Chambers’s lawyer, the officer’s dash cam clearly revealed the plate. The trial court denied the motion to suppress, Chambers was convicted, and he appealed, asserting, among other things, that the officer had no reasonable suspicion to stop him for the license plate violation, and that the trial court erred in denying his request for a jury instruction pursuant to article 38.23. The court of appeals disagreed and affirmed. According to the court, the glare on the video was so great that the video did not definitively depict a license plate. An instruction under article 38.23 was not required here because there was no evidence creating a “genuine dispute” about whether the officer’s mistake about the plate was unreasonable, or that he was lying about his observation. Chambers’s petition for discretionary review was granted. Question Presented Is Appellant entitled to an instruction pursuant to Article 38.23 of the Code of Criminal Procedure when there is a factual dispute regarding the officer's credibility and a conflict between his testimony and his dashcam video?

Is a deceptive business practice a “nature-of-conduct crime” which would require that the jury be unanimous as to the underlying acts alleged? Dunham v. State, 554 S.W.3d 222 (Tex. App.–Houston [14th Dist.] 2018, pet. granted) Dunham worked for one home security system, and he marketed services and equipment to an elderly home owner. According to the State, he represented that the equipment was of a certain type, and price, when it was not. Dunham was convicted and he appealed, asserting that the evidence was legally insufficient, and that the jury charge erroneously authorized a non-unanimous verdict. The court of appeals rejected both assertions. The jury could rationally have found that Dunham represented that a commodity or service was of a particular style, grade, or model when it was of another, and that this misrepresentation was made recklessly. The court also rejected the non-unanimity challenge. The issue was one of first impression for the offense of deceptive business practices. Dunham contended that the jury charge erroneously authorized a non-unanimous verdict because the charge did not require the jury to agree about which of the three statutory allegations appellant committed. The court held that deceptive business practice is a “circumstance-of-the conduct crime”, not a “nature-of-conduct” crime. “Thus, under the plain text of the statute, unanimity is not required for the “one or more” underlying acts listed in subsection (b).” Dunham’s petition for discretionary review was granted. Issues and Questions Presented 1. The evidence is legally insufficient to sustain Appellant's conviction for deceptive business practice where Appellant did not make any affirmative mis-representation, the State's theory of liability was based on an omission rather than an act, and the complainant accurately understood the commercial terms when the transaction occurred. 2. Whether deceptive business practice is a "nature-of-conduct" or" circumstance-of-conduct" offense and whether the jury must agree unanimously that the defendant committed the same specific act of deception to convict him. (C.R.87-88; 4 R.R. 103-08).

JURY TRIAL What about that pesky mandatory statute that clearly requires that a jury waiver be made, in person, in open court, and in writing? Rios v. State, 626 S.W.3d 408 (Tex. App.–Dallas 2021, pet. granted) Rios was convicted of continuous sexual abuse of a child and sentenced to 35 years imprisonment. The judgment contained the language, “Defendant waived the right of trial by jury and entered the plea indicated above,” but the record contains no written waiver of a jury trial, and no evidence that the trial court admonished Rios about his right to trial by jury. The court of appeals initially abated the case to the trial court for it to make findings as to whether Rios waived a jury, and the court concluded that, although there was no written waiver, and despite his incredible testimony that he did not waive a jury, Rios did in fact waive his right to trial by jury. Rios’s right to appeal was reinstated, and he complained that he had been denied his constitutional and statutory rights to trial by jury and that he had not waived his right to such a trial. The court of appeals affirmed. Although the trial court erred in not complying with the mandatory statute, T EX. CODE CRIM. PROC. ANN. art. 1.13(a), which requires that a defendant who would waive his right to a jury trial do so in writing, in person, and in open court. The court went on to find, though, that this error did not affect Rios’s substantial rights and was therefore harmless under Rule 44.2(b) of the Texas Rules of Appellate Procedure. Rios also contended that the trial court failed to obtain any waiver at all. The court acknowledged that the failure to obtain any waiver at all of the right to a jury trial is structural error and not subject to a harm analysis. The court went on to find, though, that the State had established on the record Rios’s express, knowing, and intelligent waiver, in several ways. First, “in addition to the express recitation in the judgment, the record contains several case pass slips signed by appellant and his attorney, indicating that the ‘type of setting’ in appellant's case was a court trial.” Second, counsel never objected to trial without a jury. Third, Rios testified and never objected to the absence of a jury. Fourth, counsel filed a motion for new trial and never complained about waiver. Additionally, both the prosecutor and trial counsel testified at the abatement hearing that counsel and Rios wanted a bench trial. Based on this record, and with the required deference to the trial court's determination of the historical facts, we conclude that appellant was not 42

harmed by the trial court's failure to observe the mandatory requirements of article 1.13 that appellant waive his right to a jury trial in person, in writing, and in open court. See CRIM. PROC. art. 1.13(a); Johnson, 72 S.W.3d at 349. In addition, the record does not support appellant's assertion that he did not waive his right to a jury trial in any way. Indeed, all of appellant's actions reflect that he was aware of his right to a jury trial and voluntarily waived that right. Justice Goldstein dissented, believing that the clear and mandatory statute, article 1.13, had been rendered meaningless in this case. Issue Presented 1. Rios brings to this Court, his one and only ground for review, Rios avers that the decision of the Fifth District Court of Appeals to uphold his conviction holding to John v. State, 72 S.W.3d 346, 347 (Tex.Crim.App.) is in conflict with other Court rulings based on the circumstances of Rios's case the Court of Appeals should have held to State ex rel. Curry v. Carr, 561, 562 (Tex.Crim.App.1992) and reversed Rios' conviction and ordered that he be given a trial by jury as he asked for. Did the legislature mean it when it wrote that disputed testimony can only be “read” back to the jury? Stredic v. State, 609 S.W.3d 257 (Tex. App.–Houston [14th Dist.] 2020, pet. granted) Stredic was tried for murder, and testified that he felt threatened by the complainant and fired the gun accidentally went off. The sole question was Stredic’s intent and the jury was instructed on the lesser-included offenses of manslaughter and negligent homicide. Responding to a request from the jury specifically identifying a dispute about a portion of Stredic’s testimony concerning his intent, and the trial court ordered the court reporter to type four pages, and then, over Stredic’s objection, sent that transcription to the jury. Stredic was convicted of murder and sentenced to 30 years imprisonment as a habitual offender, and he appealed. The court of appeals reversed. Article 36.28 of the Texas Code of Criminal Procedure unambiguously provides that “if the jury disagree as to the statement of any witness they may, upon applying to the court, have read to them from the court reporter's notes that part of such witness testimony or the particular point in dispute, and no other. . . .” )(emphasis supplied). The trial court would not have erred had it followed the plain statutory language and read back the disputed testimony. It abused its discretion by sending back the written transcription. 43

Although bringing out the jury and providing it with one-time oral readback of disputed testimonial evidence properly strikes a balance between the trial court's commenting on the weight of the evidence with the need to provide the jury with the means to resolve any factual disputes . . .we conclude that the provision of excerpts from the court reporter's notes in transcript form concerning an essential element of the alleged offenses to be accessed and considered as written evidence in the jury room, over objection, amounted to an impermissible comment on its importance by the trial court and unfairly tipped that balance in favor of the State (and the highest degree of offense, murder) in appellant's case. The State’s petition for discretionary review was granted. Issues Presented 1. The Fourteenth Court erred by holding a trial court cannot grant a jury's request for a transcript of disputed testimony. 2. The Fourteenth Court erred by conducting a harm analysis that did not consider the strength of the State's evidence, the weakness of the defense, or the lack of a logical connection between the supposed error and any legally determinative issue.

JUVENILES 40 years, or until he turns 19: What is the maximum term a child determined unfit to be tried can be kept in residential care when the State never sought the grand jury’s approval for a determinate sentence? Ex parte Brown, 591 S.W.3d 705 (Tex. App.–Fort Worth 2019, pet. granted) In 2012, when he was 12-years-old, Brown was charged as a juvenile with having engaged in delinquent conduct by committing aggravated sexual assault against a child under 14. About two weeks after the State filed its petition, the juvenile court found Brown unfit to proceed, and committed him to a residential-care facility. The State did not seek grand jury approval for a determinate sentence, but in 2017, when Brown was about to age out of the juvenile system, the court transferred him to district court. For some reason the State filed a “complaint” against Brown, and later that year the district court found him incompetent and committed him to a residential-care facility. He is not expected to become competent in the future. Brown says he must be released when he turns 19. The State says he may be held for up to 40 years, until he is 52-years old. 44

The trial court agreed with the State, and denied habeas relief. Brown appealed and the court of appeals reversed. The Texas Code of Criminal Procedure provides that a person may not be committed to a residential care facility for a period longer than their maximum sentence. An adult could be sentenced to life imprisonment for aggravated sexual assault, but because Brown’s alleged delinquent conduct occurred when he was 12, he was ineligible to be certified as an adult. A juvenile who receives a determinate sentence may be required to serve no more than 40 years, but the State cannot get such a sentence with the approval of a grand jury, and that approval has not been sought here. Because the State never obtained grand-jury approval, neither the juvenile court nor the district court had jurisdiction to impose a determinate sentence. . . . For the same reason that Brown was not subject to the adult punishment scheme, he was not subject to the determinate-sentence scheme—neither one applied to him. . . . If Brown ever becomes competent to stand trial, he “may not receive a punishment for the delinquent conduct ... that results in confinement for a period longer than the maximum period of confinement [that he] could have received if [he] had been adjudicated for the delinquent conduct while still a child and within the jurisdiction of the juvenile court [which in this case was until his 19th birthday]. The State’s petition for discretionary review was granted. Questions Presented 1. Article 46B.0095 of the Texas Code of Criminal Procedure allows for commitment of an incompetent defendant for the "maximum term provided by law for the offense for which the defendant was to be tried." The maximum term of confinement for a juvenile adjudicated for a first-degree felony offense is forty years if the State obtains grand jury approval for a determinate-sentence. What, then, is "the maximum term provided by law" for determining the length of mental-health commitment for a juvenile who is accused of a crime severe enough to be determinate-sentence eligible but is found unfit to proceed before a grand jury could make a determinate-sentence finding? 2. Should the Second Court of Appeals have considered the State's defense that it was prohibited from pursuing a determinate-sentence finding from the grand jury because the juvenile was found unfit to proceed and the judicial proceedings were stayed as a matter of law?

MOTION FOR NEW TRIAL 45

Beware! The trial court may be able to prevent an amended motion for new trial by denying the original motion before the expiration of 30 days. Rubio v. State, 596 S.W.3d 410 (Tex. App.–Dallas 2020, pet. granted) Rubio was convicted of capital murder and sentenced to life imprisonment, and the same day he filed a general motion for new trial which the trial court promptly overruled. Thirty days after sentencing, Rubio, now represented by a new lawyer, filed a motion to amend the motion for new trial, and an amended motion for new trial, alleging, among other things, that the original lawyer was ineffective The State objected that the amended motion was untimely and requested that the court take no action on it. Seventytwo days after sentencing, the court held a hearing on the motion, received documentary evidence, and denied the motion. Rubio appealed, and the State cross-appealed, reurging that the amended motion for new trial was untimely and that it should not have heard the motion or received evidence. The court of appeals agreed with the State’s argument on cross-appeal. Under TRAP 21.4(b) a motion for new trial may be amended before the original motion was denied, or within 30 days of sentencing, whichever happens first. The State properly objected to the amendment since it came after the original motion was denied, and the trial court should not have heard the motion or received the exhibits. The court went on to consider Rubio’s claim that his trial lawyer was ineffective, but based only on the trial record, and gave no consideration to the arguments in, or the evidence received in support of, his motion for new trial.. Rubio’s petition for discretionary review was granted. Question Presented Did the Court of Appeals resolve a procedural issue relating to the timely filing and hearing of an amended motion for new trial in a manner that conflicts with Courts of Appeals and Court of Criminal Appeals precedent?

OFFICIAL OPPRESSION Oppression by the warrantless arrest of one in his home for public intoxication. Ratliff v. State, 604 S.W.3d 65 (Tex. App.–Austin 2020, pet. granted) 46

Ratliff was chief of police, and one of the officers who arrested Nutt for public intoxication. Ratliff initialed a police report made by one of the other officers who participated in Nutt’s arrest, and Ratliff was later charged with tampering with a governmental record, and official oppression. The jury convicted Ratliff of both offenses, and he appealed, complaining, among other things, that the evidence was insufficient to support his conviction for either offense. The court of appeals disagreed, and affirmed. Regarding the conviction for tampering, the court held “that a rational jury could have concluded that when Ratliff affixed his initials to the offense report that contained omissions of events pertaining to the legality of Nutt's arrest that Ratliff himself witnessed, he made or used a governmental record knowing that the report was false.” There were two counts of official oppression. Count one alleged that Ratliff had illegally arrested Nutt for public intoxication after entering his house without a warrant, and the court held that the evidence was legally sufficient to support this conviction. The court also found the evidence legally sufficient to support Ratliff’s conviction under count two, based on Ratliff’s criminal trespass. The court of criminal appeals granted Ratliff’s petition for discretionary review. Issue Presented The Court of Appeals erred to find that the evidence was sufficient to sustain the convictions entered in the instant case.

PRETRIAL HEARINGS The defendant’s right to be present at his pretrial hearing. King v. State, 2020 WL 5667148 (Tex. App.–Waco 2020, pet. granted)(not designated for publication) After qualifying the venire panel, the court held a hearing on King’s motion in limine regarding punishment evidence while King was outside the courtroom. The State did not object to the motion, and it was granted. While King was still absent, the parties discussed whether King would stipulate to each paragraph of the indictment, whether he would want to agree to anything, and whether he might possibly be disruptive in the courtroom. King’s lawyer told the court King “believes he can fire me and get another attorney and delay this trial,” and the court advised that there would be no further delays. 47

And the court and the lawyers discussed how to handle voir dire, assuming King would plead guilty. King was convicted and he argued on appeal that the trial court violated his statutory and constitutional rights to be present. The majority affirmed, agreeing that article 28.01§ 1 of the Texas Code of Criminal Procedure had been violated, but holding that, since the error did not affect King’s substantial rights, reversal was not required under Rule 44.2(b) of the Texas Rules of Appellate Procedure. The court also determined that there King’s absence bore no substantial relationship to his opportunity to defend himself. The court also held that King had a Sixth Amendment right to be present at all phases of the proceedings when threatened with a loss of liberty, and that this constitutional right was violated. Again, though, reversal was not required since the Court determined, beyond a reasonable doubt, that the error did not affect the outcome of the trial, pursuant to Rule 44(a). Chief Justice Gray dissented, because counsel had brought up a concern that King might be disruptive during the trial, and that this might have affected the trial judge’s attitude toward King. Additionally, there was an off-the-record discussion while King was in the hallway. I do not know what occurred during the hearing off the record; and neither do you. Under the applicable standard of review, because I do not know what happened, I cannot reach the necessary conclusion to hold the error harmless that “beyond a reasonable doubt, the error did not affect the outcome of the trial.” This might be the time to note that the defendant was sentenced to the maximum punishment for the offense as enhanced. Thus, being unable to find that the constitutional error was harmless, I would reverse the judgment of the trial court and remand for a new trial. Question Presented Can harmlessness be presumed from a silent record when a defendant has been denied his constitutional and statutory rights to be present during a pretrial proceeding?

PUBLIC TRIALS Another case testing the court’s resolve to enforce the Sixth Amendment’s public trial guarantee. Williams v. State, 2020 WL 2543308 48

(Tex. App. San Antonio 2020, pet. granted) (not designated for publication) The trial court granted the State’s motion to exclude a member of Williams’s family from the courtroom during the testimony of its confidential informant in this drug case, asserting that Williams’s presence might traumatize or intimidate the informant. Williams was allowed to watch the proceedings from another room on a live stream video feed. The court of appeals reversed, finding that appellant had met her two-part burden to prove a Sixth Amendment violation. First, the court room was closed, albeit to just one person during the testimony of one witness. Second, the closure was not justified. Recognizing that the possibility of witness intimidation can justify partial closure, the court held that “the trial court's findings must express more than a generic concern,” which they failed to do in this case. We do not diminish the need to protect confidential informants. However, in this case, the record lacks specific factual findings, or any other evidence, identifying how the exclusion of Williams's family member from the courtroom serves the interest advanced by the State of preventing intimidation of the confidential informant. . . . Therefore, given the record before us, we must find Williams's Sixth Amendment right to a public trial was violated. The violation of a defendant's public trial right is structural error that does not require a showing of harm. Issues Presented 1. The judge, on an at best, partially developed record, required one spectator to view one witness's testimony contemporaneously from a neighboring room. Is this the sort of closure requiring reversal contemplated by the right to a public trial? 2. Did the Fourth Court of Appeals fail to adequately address petitioner's argument that the courtroom was not closed as required by Rule 47.1 of the Texas Rules of Appellate Procedure? 3. Does the Fourth Court of Appeals's opinion fail to provide proper guidance and risk creating confusion for other courts when it failed to make a clear distinction between full and partial courtroom closures and the standards applicable to each type of closure?

SEARCH AND SEIZURE 49

Did an initially consensual encounter escalate into an investigative detention? Monjaras v. State, 631 S.W.3d 794 (Tex. App.–Beaumont 2021, pet. granted) Two officers saw Monjaras walking through an apartment complex’s parking lot. After driving by him twice, they stopped and asked how he was doing, and eventually asked if they could search him. Monjaras started to empty his pockets and the officer told him to hold on, that he had just asked a question, and he extended his hand, palm downward. Both officers were standing close to him and touched him. The officer asked Monjaras to put his hands on the patrol car and searched his person once and found nothing, then searched his backpack and, finding five bullets, he asked if he had a gun; Monjaras said he did not. Monjaras was searched again, and when a gun was felt in his groin area, they struggled, and eventually cuffed Monjaras. Monjaras moved to suppress the gun asserting that he was detained without reasonable suspicion. The trial court denied the motion, Monjaras pled guilty and appealed, and the court of appeals affirmed, holding that, from the totality of circumstances, this was a consensual encounter, not an investigative detention, and that reasonable suspicion was not required. Justice Goodman dissented “[b]ecause the encounter became an investigative detention well before it ended, and the officers did not have reasonable suspicion to detain Monjaras when it became nonconsensual . . . .” The court of criminal appeals granted Monjaras’s petition for discretionary review. Issues Presented The Court of Appeals erred when it determined that the interaction between the Appellant and Officers Sallee and Starks was at all times a consensual encounter. Although the encounter may have initially been consensual, the encounter quickly escalated into an investigative detention that was not supported by reasonable suspicion when the Appellant yielded to the officers' show of authority before the first search.

Are all anticipatory search warrants illegal in Texas? Parker v. State, 2021 WL 1567882 (Tex. App.–Austin 2021, pet. granted)(not designated for publication) A UPS supervisor in Eugene, Oregon, opened a package and, thinking he smelled marijuana, notified the Oregon State police. A detective opened the package and recognized psilocybin mushrooms, which was confirmed by testing. Parker, who lived in Hays County, Texas, was listed as both the shipper and recipient of the package. The Oregon detective notified Harris, a detective in Hays County, and 50

Harris requested that the package be sent to Parker. Harris got an anticipatory warrant to arrest Parker and to seize and search the package after confirmation was received that it had arrived at Parker’s residence. After confirming delivery, the warrant was executed, the officers entered Parker’s home, and the package was searched. Later Harris obtained a warrant to obtain Parker’s electronic customer data from his cellular provider to determine Parker’s presence in Oregon when the packages were shipped. The trial court denied Parker’s motion to suppress the fruits of the search of his home, and he appealed. The court of appeals affirmed. “An anticipatory search warrant is “‘a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place.’” The court rejected Parker’s argument that article 18.01(b) of the Texas Code of Criminal Procedure prohibits magistrates from issuing anticipatory search warrants. “The Court of Criminal Appeals has not addressed this issue under article 18.01, but the United States Supreme Court has rejected this argument under the Fourth Amendment.” The court of appeals added this quote from Because the probable-cause requirement looks to whether evidence will be found when the search is conducted, all warrants are, in a sense, “anticipatory.” In the typical case where the police seek permission to search a house for an item they believe is already located there, the magistrate's determination that there is probable cause for the search amounts to a prediction that the item will still be there when the warrant is executed. .... Thus, when an anticipatory warrant is issued, the fact that the contraband is not presently located at the place described in the warrant is immaterial, so long as there is probable cause to believe that it will be there when the search warrant is executed. Anticipatory warrants are, therefore, no different in principle from ordinary warrants. They require the magistrate to determine (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed. United States v. Grubbs, 547 U.S. 90, 96 (2006)(citations omitted). Parker’s petition for discretionary review was granted by the court of criminal appeals. Question Presented 1. Are all anticipatory search warrants are prohibited under Texas law? 51

A general warrant? Patterson v. State, 2020 WL 7257069 (Tex. App.–Waco 2020, pet. granted) (not designated for publication) Police were called to investigate the death at a fraternity house, and they treated the premises as a murder scene. They conducted three warrantless “sweeps” of the house, the first two of which were for the purpose of ensuring that all the residents were present and accounted for. During these two initial sweeps, the officers noted drugs and paraphernalia in plain view in several of the rooms. A search warrant was prepared, and the affidavit stated that Patterson had in his room, in plain view, a “coffee table: two small plastic baggies with white colored residue, white powdery substance arranged in a line.” Patterson was charged with possessing controlled substances and moved to suppress the evidence, asserting that the warrant did not describe his room in the house with sufficient particularity. The court of appeals agreed, and reversed Patterson’s conviction. Neither the affidavit nor the warrant identified Patterson’s room within the house – room 216, as the place to be searched. The description of the place to be searched, the entire fraternity house, was too broad and was deficient as a general warrant. Question Presented Whether the search warrant was facially valid because it incorporated the warrant affidavit, which specifically listed Appellant’s room as containing narcotics. What is the standard for determining harm – Rule 44.2(a), or Rule 44(b) – when the error involves evidence obtained in violation of Article I, § 9 of the Texas Constitution, and inadmissible under article 38.23(a)? Holder v. State, 2020 WL 7350627 (Tex. App.–Dallas 2020, pet. granted)(not designated for publication) The court of criminal appeals held that Holder’s reasonable expectation of privacy under Article I, § 9 of the Texas Constitution was violated when the State accessed 23 days worth of cell phone information without probable cause, and remanded the case to the court of appeals to determine harm.

The court of appeals first determined that the more protective, constitutional standard for harm – Rule 44(2)(a) applies to this error. This is so even though the Texas exclusionary rule is not expressly a part of Article I, § 9, and requires resort to our statutory exclusionary rule, article 38.23(a) of the Texas Code of Criminal Procedure. The court then found the error harmful because it was unable to determine that the admission of this information from Holder’s cell phone was harmless beyond a reasonable doubt. The State’s petition for discretionary review was granted. Questions Presented 1. If the error at trial was in admitting evidence under a non-constitutional rule–TEX. CODE. CRIM. PROC. art.38.23–shouldn’t harm be assessed under the non-constitutional harm standard in TEX. R. APP. P. 44.2(b)? 2. If the non-constitutional “substantial rights” standard applies, was the error harmless? Did the affidavit for a warrant to search a cell phone sufficiently state probable cause? State v. Baldwin, 614 S.W.3d 411 (Tex. App.–Houston [14th Dist.] 2020, pet. granted) The affidavit to search a cell phone found in the car Baldwin was driving four days after a capital murder asserted that the perpetrators, two Black males, left the scene in a white, four-dour sedan; that around that time, a neighbor saw a white, four-door sedan exiting the neighborhood at a very high rate of speed; that two neighbors saw a white, four-door sedan in the neighborhood the day before and the day of the murder, that video surveillance showed a white sedan entering the street and circling the neighborhood four times; a neighbor saw a white sedan driven by a large Black male pass his house three different times shortly before the crime; another neighbor saw a four-door, white sedan occupied by two Black males the day before the crime and she took a picture of the license plate; the sedan in the photo was registered to Baldwin’s step father, who told investigators he had sold it to Baldwin, and that Baldwin was living with his girlfriend. Four days after the murder, Baldwin was seen driving the sedan and he was arrested. He consented to the search of the car, but refused consent to search the cell phone. The trial court held that the affidavit failed to state probable cause to search the cell phone, and the court of appeals agreed. There were no facts supporting the inference 53

that all the witnesses saw the same white car or that the car they saw was the one in the surveillance videotape. “The only fact tying Baldwin to the neighborhood is the photograph of the license plate on his car taken the day before the murder. None of the facts in the affidavit ties Baldwin or the cellphone found in his vehicle to the commission of this or any other offense. At most, the magistrate could infer that Baldwin (or someone driving his car) was in the neighborhood the day before the murder.” The court found it “would strain credulity to conclude in a county with nearly five million people that evidence of a crime probably would be found in someone's car just because he was in the neighborhood on the day before the offense in a car the same color as the one driven by a suspect who also happened to be Black.” The court also found the magistrate was unreasonable to find a connection between the cell phone seized and the crime. “[G]eneric, boilerplate language like the language in the affidavit that a smart phone may reveal information relevant to an offense and that suspects might communicate about their plans via cellphone is not sufficient to establish probable cause to seize and search a cellphone.” In this case, the nexus between the vehicle that Baldwin was driving and the vehicle seen at the crime is tenuous at best. Extending that nexus to include Baldwin's cellphone based on nothing more than a recitation that it is common for people to communicate their plans via text messaging, phone calls, or other communication applications would be extending the reach of probable cause too far. The court of criminal appeals granted the State’s petition for discretionary review. Issues Presented 1. The court of appeals departed from the proper standard of review by substituting its own judgment for that of the magistrate who viewed the warrant affidavit and found probable cause. 2. The court of appeals employed a heightened standard for probable cause, departing from the flexible standard required by law. Exigent circumstances and the warrantless seizure of a cell phone containing Snapchat information. Igboji v. State, 607 S.W.3d 157 (Tex. App.–Houston [14th Dist.] 2020, pet. granted) 54

The police suspected Igboji committed aggravated robbery, and during an interview told him they were going to seize his phone and get a search warrant if he did not give it to them. Hearing this, he gave them the phone and several days later they got a search warrant. Igboji moved to suppress the contents of the cell phone, the trial court denied the motion, he was convicted, and he appealed. The court of appeals reversed. The State argued that the seizure of the phone was legal, either because it was consensual, or because it was justified by exigent circumstances. The court disagreed. The State failed to show by clear and convincing evidence that Igboji voluntarily consented to the seizure of his phone. Nor was there “any evidence showing that Appellant, by his affirmative conduct, was actively deleting evidence on his phone. [citations omitted] Detective Ramirez's beliefs regarding Snapchat, though reasonable, do not by themselves establish the existence of exigent circumstances. Therefore, Detective Ramirez's warrantless seizure of Appellant's phone did not fall within the exigent-circumstances exception.” The State’s petition for discretionary review was granted.

Questions Presented 1. Do exigent circumstances to seize a cellular phone for fear of unintentional loss of evidence require that law enforcement act at the earliest possible opportunity? 2. Do exigent circumstances to seize a cellular phone for fear of intentional destruction of evidence require “affirmative conduct” by the suspect? 3. Does the exigent circumstances exception require proof that the evidence was unavailable from other sources? Does article 14.03 have an exigency requirement? If so, did the State meet that requirement based on the tendency of alcohol to dissipate in the blood? State v. McGuire, 586 S.W.3d 451 (Tex. App.–Houston [1st. Dist.] 2019, pet. granted) McGuire collided with a motorcycle and the motorcyclist was killed. McGuire 55

pulled over and waited in a nearby gas station where the police found him and arrested him after smelling alcohol on his breath and suspecting he was intoxicated. His blood was taken without warrant or consent. He was convicted and appealed, and the court of appeals reversed, holding that the blood draw was illegal. His case was remanded for a new trial and he filed another motion to suppress, this time asserting that his warrantless arrest was illegal. The trial court found the warrantless arrest illegal and the State appealed, claiming the arrest was legal under article 14.03(a)(1) because probable cause existed and the arrest was made in a “suspicious place.” The court of appeals affirmed. The authority to arrest without a warrant in Texas is limited by chapter 14, and the State bears the burden of proving that some exception justifies the arrest under that chapter. One recognized requirement to the application of article 14.03(a)(1) is that there be exigent circumstances. “The State had the burden at the 2018 suppression hearing to establish exigent circumstances to permit the warrantless arrest of McGuire, but it did not.” Questions Presented 1. Does Tex. Code Crim. Proc. Art.14.03(a)(1) have an exigency requirement for warrantless arrests? 2. If Article 14.03(a)(1) has an exigency requirement for a warrantless arrest in public, it was satisfied here because the integrity of blood-alcohol-content evidence would have been compromised had Appellee been free to leave. Will weaving alone, whether safe or not, now constitute reasonable suspicion to stop, thus overruling Hernandez, Tarvin, and Cerny? State v. Hardin, 2019 WL 3484428 (Tex. App.–Corpus Christi 2019, pet. granted) (not designated for publication) An officer stopped Hardin after observing the tires on her car “cross minimally into an adjacent lane after rounding a curve in the road.” She moved to suppress evidence found in her car, asserting the officer lacked reasonable suspicion for the stop, since there was no evidence that her lane change was unsafe. The trial court granted the motion, the State appealed, and the court of appeals affirmed. The State relied on this language from a four-Judge plurality decision in Leming v. State, 493 S.W.3d 552, 559 (Tex. Crim. App. 2016):

[I]t is an offense to change marked lanes when it is unsafe to do so; but it is also an independent offense to fail to remain entirely within a marked lane of traffic so long as it remains practical to do so, regardless of whether the deviation from the marked lane is, under the particular circumstances, unsafe. The court of appeals acknowledged this language but, since it was merely a plurality decision, the court believed itself bound by its own opinion in State v. Cerny, 28 S.W.3d 796, 801 (Tex. App.—Corpus Christi–Edinburg 2000, no pet.), that failure to stay within one’s own lane is not grounds for a stop, unless this movement is also unsafe. The court also cited the well known and often relied upon cases of Hernandez and Tarvin. The State’s petition for discretionary review was granted. Issue Presented The Thirteenth Court of Appeals erred in concluding that the officer who stopped Hardin's vehicle lacked reasonable suspicion to stop her for failing to maintain a single lane by swerving into another lane, whether or not this movement could be done safely.

SENTENCING Can the trial court order restitution paid to the Attorney General to reimburse it for paying for the victim’s SANE examination? Garcia v. State, 2020 WL 6750910 (Tex. App.–Austin 2020, pet. granted)(not designated for publication) Garcia was convicted of aggravated sexual assault and sentenced to 12 years imprisonment. The trial court ordered Garcia to pay $1,000 in restitution to the Office of the Attorney General to compensate it for reimbursing the Bell County District Attorney's Office for the cost of a sexual assault nurse examiner's (SANE) examination of the victim. This does not constitute a payment to the victim to compensate her for her loss. Rather, it is a payment to the Office of the Attorney General to compensate it for reimbursing the Bell County District Attorney's Office, which paid for the victim's examination by a SANE. . . . Such a payment is not one made to compensate the victim for her injury or loss and, consequently the trial lacked authority to order Garcia to pay for the cost of the forensic exam as restitution. 57

The court of appeals modified the judgment to delete the order to pay restitution to the Attorney General. The State’s petition for discretionary review was granted. Questions Presented 1. Is an objection required to preserve a challenge to restitution ordered payable to the Attorney General for a crime victim-fund payment made on behalf of a sexual assault victim for a forensic medical exam? 2.Alternatively, does a restitution order payable to the Attorney General for a crime-victim-fund payment made on behalf of a sexual assault victim for a forensic medical exam qualify as victim compensation? 3. Alternatively, is a restitution order payable to the Attorney General for a crime-victim-fund payment made on behalf of a sexual assault victim for a forensic medical exam a proper reimbursement cost? Estoppel and the affirmative defense of due diligence. Martell v. State, 615 S.W. 3d 269 (Tex. App.–El Paso 2020, pet. granted) The court put Martell on deferred adjudication and allowed him to live at a certain address in Juarez, but ordered him to report to a community supervision officer in El Paso in 1999. After a few months he stopped reporting, and in 2002, the State filed a motion to adjudicate; the same day, the court issued a capias, but he was not arrested until 2017, at which time he reported that he had been living for the last seven years in El Paso. At the adjudication hearing it was shown that no one in law enforcement ever attempted to contact Martell in Juarez. Martell argued that the State had failed to exercise due diligence by failing to attempt an in-person contact with him in Mexico. The trial court adjudicated Martell guilty, finding he had failed his burden of establishing a due diligence affirmative defense. Martell appealed. The court of appeals reversed, and rejected the State’s argument that, since its officers were prohibited from going to Mexico to conduct a home visit, it was not required to do a futile act. Based on the facts established at the revocation hearing, it is undisputed that no supervision officer, peace officer, or other officer attempted in-person contact with Martell at the address used for both his residence and employment, and Martell satisfied his burden of proving the due-diligence 58

affirmative defense. See TEX. CODE CRIM. PROC. ANN. art. 42A.109. No record evidence exists to the contrary. Therefore, the evidence was both legally and factually insufficient to support the trial court's rejection of the due-diligence affirmative defense. The State’s petition for discretionary review was granted. Issue Presented After holding that the evidence was legally and factually insufficient to support the trial court's rejection of the defendant's due-diligence affirmative defense, the Court of Appeals erred in failing to further address the issue of estoppel, even though the State raised the estoppel issue in the trial court, the trial court relied on the estoppel issue in proceeding to adjudicate the defendant's guilt, and the State again raised the estoppel issue in the Court of Appeals. Concurrent fines? Anastassov v. State, 2020 WL 4669880 (Tex. App.–Dallas 2020, pet. granted)(not designated for publication) Here, the trial court conducted a single proceeding for multiple offenses alleged to have been committed on or about December 24, 2011, and the trial court entered judgments in 2019 which imposed $10,000 fines and $599 in court costs in both cases. Because the sentences run concurrently and involve multiple offenses tried together in a single proceeding, the trial court could not assess multiple fines or duplicate costs in the two judgments. See TEX. PENAL CODE § 3.03(a); TEX. CODE CRIM. PROC. art. 102.073(a). Accordingly, we modify the judgment in Case No. F-1550350-V by deleting the $10,000 fine and the $599 in court costs. The court of criminal appeals granted the State’s petition for discretionary review. Question Presented Should concurrent fines be discharged concurrently like concurrent terms of confinement?

SEXUAL OFFENSES Lewd exhibition? Romo v. State, 629 S.W.3d 679 (Tex. App.–San Antonio 2021, pet. granted) Romo was convicted of continuous sexual abuse of a child and possession of child pornography and he appealed, asserting, among other things, that the evidence was legally insufficient to support the verdicts on both counts. The court of appeals affirmed the conviction for continuous abuse, but reversed the child pornography conviction, finding the evidence insufficient to prove that the images depicted the lewd exhibition of genitals. Following a decision from the court of criminal appeals, the court of appeals referred to 6 factors provided by United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), aff'd sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987), and aff'd, 813 F.2d 1231 (9th Cir. 1987), as useful to determining lewdness. Specifically, the court found that the video in question focused on the faces of the children, not their pubic areas; that there was no sexual activity depicted in the video; that there was no unnatural posing; that most of the girls were completely nude during most of the video; that there is no coyness or willingness to engage in sexual activity, and that, because the court was unable to determine what was said on the video because there was no transcription, it could not be said that the video was designed to elicit a sexual response from the viewer. “Without more, on this record, and using the Dost factors as a guide, we conclude the evidence is legally insufficient to support a finding that the video depicts a “lewd exhibition of the genitals” as defined in the jury's charge.” The court of criminal appeals granted the State’s petition for discretionary review. Question Presented 1. Did the Fourth Court of Appeals misapply the Brooks/Jackson standard for determining the legal sufficiency of the evidence by improperly reweighing the evidence and reassigning veracity in an erroneous attempt to follow the U.S. v. Dost factors?

Proving “continuous” sexual abuse. Witcher v. State, 2020 WL 7483953 (Tex. App.–Texarkana 2020, pet. granted) Witcher was convicted of continuous sexual abuse of a child when she was 10 or 11 years old. The child testified that Witcher had engaged in various sexual acts with her more than five times, beginning when her brother went to jail, and ending when she told her sister. Her sister testified that the complainant told her of the abuse around July 26, 2018, and this sufficiently established the last sexual act; the problem was fixing the first sexual act, due to the State’s badly worded question: “‘In about June of -- maybe June 10th, give or take, did [the brother] get arrested and end up in the Bowie County Jail?’ To which [the sister] responded, ‘Yes, ma'am.’” Despite this, the jury found Witcher guilty of continuous sexual abuse, and he appealed, asserting that the evidence that evidence of multiple sexual acts continuing for 30 days or more was insufficient. The court of appeals agreed and reversed. [T]the jury could have inferred that the first assault occurred on or before June 26 or it could have inferred that the first assault occurred after June 26, but there is no evidence by which it could have inferred one over the other. Although such inferences “may not be completely unreasonable, ... [they are] not sufficiently based on facts or evidence to support a finding beyond a reasonable doubt.” Consequently, we find that no rational jury could find beyond a reasonable doubt that the sexual abuse occurred during a period that is thirty days or more in duration. [citations omitted] The court of criminal appeals granted the State’s petition for discretionary review. Issue Presented The court of appeals ignored important evidence and substituted its interpretation of the victim’s testimony for the jury’s. The corpus delicti rule and indecency with a child. Shumway v. State, 2020 WL 86780 (Tex. App.–Beaumont 2020, pet. granted) (not designated for publication)

Shumway was convicted of indecency with a child and argued that there was insufficient evidence of the corpus delicti because his confessions to his bishop and his 61

wife were not sufficient evidence of guilt absent independent evidence that someone had committed a crime. The court of appeals disagreed and affirmed, concluding that there was some evidence outside of the extra-judicial confessions which, considered alone or in connection with the confessions, showed that the crime actually occurred. Shumway’s petition for discretionary review was granted. Questions Presented

1. Does the corpus delicti rule require evidence totally independent of a defendant’s extrajudicial confession showing that the‘essential nature’ of the charged crime was committed by someone? 2. Can independent evidence as to time, motive, opportunity, state of mind of the defendant, and/or contextual background information satisfy the corpus delicti rule in an indecency with a child charge when there is zero evidence of sexual contact? 3. Is the evidence legally sufficient to support convictions for indecency with a child when the independent evidence does not tend to establish sexual contact? 4. Did the Ninth Court of Appeals improperly circumvent The Court of Criminal Appeals 2015 ruling on corpus delicti doctrine in Miller v. State, 457 S.W.3d 919 (TEX. CRIM. APP. 2015) which expressly declined to use a trustworthiness standard regarding the legal sufficiency standard? Can a 4-year old commit prostitution? Turley v. State, 597 S.W.3d 30 (Tex. App.–Houston [14th Dist.] 2020, pet. granted) The police began an investigation based on a Craiglist ad that eventually let them to charge Turley with compelling prostitution of a 4-year old and trafficking this child based on compelling prostitution. Turley was convicted of both offenses, and appealed, asserting that the evidence was legally insufficient, and the court of appeals agreed. Following the plain meaning of the compelling-prostitution statute, which requires as a necessary element a showing that another person (in this case, the four-year-old) was caused to commit prostitution, when the other person is a “child” and that child cannot commit the offense of prostitution, we conclude the defendant cannot be convicted for compelling prostitution.

Since a 4-year old cannot commit the offense of prostitution, a defendant cannot be convicted of compelling that child to engage in prostitution, and, accordingly, the evidence is legally insufficient to prove both offenses. The court reversed the convictions and remanded for entry of a judgment of acquittal. The court of criminal appeals granted the State’s petition for discretionary review. Questions Presented 1. Did the court of appeals err when it held as a matter of law that selling sexual contact with a four-year-old child could never constitute compelled prostitution? 2. Must a child knowingly engage in an act of prostitution for the person who sold sex with her to be guilty of compelling prostitution?

SPEEDY TRIAL “Does Covid-19 and its impact displace the rights afforded in our United States and Texas Constitutions?” No, says the Amarillo Court of Appeals. Ex parte Sheffield, 611 S.W.3d 630 (Tex. App.–Amarillo 2020, pet. granted) Justice Quinn framed the question this way: Does Covid-19 and its impact displace the rights afforded in our United States and Texas Constitutions? That is the underlying question involved in this appeal. The constitutional right at issue here is found in the Sixth Amendment of the United States Constitution and article I, § 10 of the Texas Constitution. The former provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial....” U.S. CONST. amend. VI. The latter states that “[i]n all prosecutions the accused shall have a speedy public trial by an impartial jury.” TEX. CONST. art. I, § 10. This appeal comes to us from an order denying Kevin Dale Sheffield's petition for writ of habeas corpus. Through that petition, he sought to either be released from jail on a personal recognizance bond, have his bail reduced to $10,000 from $100,000, or be tried per the dictates of the aforementioned constitutional provisions. He felt himself entitled to a personal recognizance bond or a reduction in bail because he was indigent, sitting in jail, and allegedly unable to be tried due to orders issued by the governor of Texas. We reverse and remand. 63

The court of appeals noted that neither the Governor, the Office of Court Administration, the Presiding Judge of the Court of Criminal Appeals, nor the Chief Justice of the Texas Supreme Court has the power to suspend the Constitution. “That the Supreme Court deems this true is exemplified by its caveat in paragraph 2 of its First Emergency Order subjecting the restriction imposed therein to ‘constitutional limitations.’” In a motion for rehearing the State argued that the court of appeals had no jurisdiction to grant Sheffield the relief he sought because he did so via an interlocutory appeal from an adverse ruling on his pretrial writ of habeas corpus. Relying on Ex parte Perry, 483 S.W. 3d 884 (Tex. Crim. App. 2016), the court disagreed; although the rules governing are strict, they are not immutable. For those “certain types of claims” where “the rights underlying” them “would be effectively undermined if not vindicated before trial,” a pretrial writ for habeas relief may be the appropriate course of action. The constitutional claim urged by Sheffield here is one such right given the unique circumstances preventing its enjoyment. Unless addressed before trial, the denial of his entitlement to a speedy disposition cannot be vindicated when the trial judge indefinitely forgoes trial. His claim entails a substantive right to a timely disposition of the charges against him, which right is being effectively undermined through administrative fiat. These circumstances satisfy the very criteria used in Perry to justify deviation from historical limitations imposed on the availability of habeas relief. So, we disagree with the State, conclude that we have jurisdiction over the claim and deny rehearing. The court of criminal appeals granted the State’s petition for discretionary review, and, on its own motion, raised another question. Questions Presented 2. Are speedy trial claims cognizable on pretrial habeas if the applicant asks for a speedy trial rather than a dismissal? 3. Did the court of appeals improperly reverse the trial court’s ruling for what the trial court said instead of what she did? Court’s own motion Did the trial court have jurisdiction to hold a trial while the State’s petition for discretionary review was pending in this Court? 64

TAMPERING WITH EVIDENCE A double-failure of proof: the evidence was insufficient to prove that the defendant dumped the marijuana down the toilet, and, also that dumping marijuana in the toilet altered or destroyed it. David v. State, 621 S.W.3d 920 (Tex. App.– El Paso 2021, pet. granted) The police had information that drug activity was taking place at a motel in El Paso, and after a period of surveillance, they forced their way into number 18 where they found two women in the living area, drug paraphernalia in plain view, and a “very, very strong odor of marijuana.” Hearing movement inside the bathroom, the officers demanded that the occupant open the door, and when he did not, they forced their way in and found David inside, fully dressed, and standing near the toilet which contained a substance that looked like marijuana, paraphernalia, and fecal matter. It appeared to the officers that someone had tried to flush the toilet, although they had not heard the sound of flushing while they stood outside the door, nor had they seen anyone flushing. David was convicted of tampering with evidence and he appealed. The court of appeals reversed, concluding, “the evidence adduced at trial was legally insufficient to support a finding, first, David was the individual that destroyed or altered the marijuana and second, the marijuana was in fact, altered or destroyed.” The State’s petition for discretionary review was granted. Issues Presented 1. By holding that the evidence was legally insufficient to establish David’s identity as the individual who committed the offense when he was alone in a locked bathroom with the tampered-with evidence, the Court of Appeals erred by ignoring the circumstantial evidence establishing David’s identity and requiring the State to disprove an alternative hypothesis regarding the offender’s identity. 2. By holding that placing marijuana in a toilet bowl containing feces does not constitute “altering” or “destroying” within the meaning of the tampering-with-physical-evidence offense, the Court of Appeals failed to apply the appropriate legal-sufficiency standard by improperly substituting its judgment for that of the jury’s and disregarding the jury’s 65

common-sense inference that marijuana that has been contaminated with feces has been altered or destroyed. 3. Even if the Court of Appeals did not err by holding that the evidence was legally insufficient to support David’s conviction for tampering with physical evidence, the Court of Appeals erred by failing to reform the conviction to the lesser-included offense of attempted tampering with physical evidence, thereby violating this Court’s instruction in Thornton v. State.

TAMPERING WITH A GOVERNMENTAL RECORD An offense report. Ratliff v. State, 604 S.W.3d 65 (Tex. App.–Austin 2020, pet. granted) Ratliff was chief of police, and one of the officers who arrested Nutt for public intoxication. Ratliff initialed a police report made by one of the other officers who participated in Nutt’s arrest, and Ratliff was later charged with tampering with a governmental record, and official oppression. The jury convicted Ratliff of both offenses, and he appealed, complaining, among other things, that the evidence was insufficient to support his conviction for either offense. The court of appeals disagreed, and affirmed. Regarding the conviction for tampering, the court held “that a rational jury could have concluded that when Ratliff affixed his initials to the offense report that contained omissions of events pertaining to the legality of Nutt's arrest that Ratliff himself witnessed, he made or used a governmental record knowing that the report was false.” The court of criminal appeals granted Ratliff’s petition for discretionary review. Issue Presented The Court of Appeals erred to find that the evidence was sufficient to sustain the convictions entered in the instant case. THEFT Theft of cargo: You were sadly mistaken if you thought that you would never have to think about bills of lading after you passed the bar; or that you would never have to contemplate what it meant to be “hooked up” to a trailer. 66

Joe v. State, 620 S.W.3d 834 (Tex. App.–Waco 2021, pet. granted) The indictment alleged that Joe “intentionally and knowingly conduct[ed] an activity in which the defendant possessed stolen cargo, to wit: mattresses and box springs by hooking up the truck he was driving to the trailer where the cargo was located....” Joe was convicted, and he appealed, asserting that the evidence was legally insufficient (1) because the mattresses and box springs were not stolen cargo, as defined by § 31.18 of the Texas Penal Code and (2) because Joe did not possess the trailer and its contents given that a reasonable fact finder could not have found from the evidence that he “hooked up” to the trailer. The court of appeals disagreed, and affirmed. The facility manager for Corsicana Bedding testified that 145 items valued at $42,900, including a trailer, had been transferred to a sealed shipping container inside a trailer, and that a bill of lading had been issued for the goods in question. The function of the bill of lading was to transfer possession from Corsicana Bedding to the carrier in the shipping yard, and this transfer meant that the goods were cargo moving in commerce, as contemplated by § 31.18, despite the fact that the goods were still in the shipping yard. The court also found the evidence legally sufficient to show that Joe had “hooked up” to the trailer full of mattresses. There was testimony that someone other than Joe was supposed to pick up the mattresses, and that Joe had “hooked up” the fifth wheel to the trailer and was attempting to connect the air lines and the lights when he was caught. The court rejected Joe’s argument that the evidence showed merely an attempted theft, since he had not yet connected the brake lines or raised the lifts, and was unable to move the trailer “even one inch.” Asportation – the act of carrying away or removing property – is not an element of statutory theft. A reasonable fact finder could have found that Joe possessed the cargo when he hooked up his trailer. Chief Justice Gray was unconvinced, and dissented. As to whether Joe had sufficiently “hooked up,” Judge Gray asked: “Riddle me this: Where was the man when he jumped off the bridge?” His answer was that hooking up to a trailer is a “multi-step process” that had not been fully consummated in this case at the time Joe was caught. Joe intended to possess the cargo, but he did not. “This is a classic case of attempting to steal the cargo.” Question Presented Whether the court of appeals Tenth District erred in holding the evidence legally sufficient to support Petitioner’s conviction for the offense of theft of cargo?

VOIR DIRE Picky, picky. Laws v. State, 2020 WL 6051343 (Tex. App.–Texarkana 2020, pet. granted) (not designated for publication) Counsel objected to allowing the alternate juror to attend the deliberations of the jury, but he did not “argue that allowing the alternate juror to remain in the jury room during deliberation constituted a statutory violation of Article 36.22.” The court of appeals held that Laws’s argument did not meet Rule 33.1(a)(1)’s “specificity requirement.” Additionally, the court faulted counsel for not addressing how he was harmed, in light of the trial court’s instruction that the alternate not participate in the deliberations or speak, and that the other jurors disregard anything he said. The court of criminal appeals granted Laws’s petition for discretionary review. Questions Presented 1. Did the Court of Appeals err in concluding that Appellant failed to preserve error? 2. Did the trial court violate Art. 36.22? 3. Is harm presumed when a trial court violates the first sentence of Art. 36.22? 4. Was Appellant harmed by the violation of the first sentence of Art. 36.22?

ZOOM Can a trial court force a defendant to appear by videoconferencing, over his objection? Lira v. State, 2021 WL 1134801 (Tex. App.–Eastland 2021, pet. granted) (not designated for publication) The trial court ordered that Lira’s plea hearing be conducted by Zoom video conference, pursuant to the Governor’s 17th Emergency Order. Lira filed a motion to rescind the order, indicated he did not consent to plea by videoconference, and moved for 68

a continuance until he could appear in person and with his attorney in his physical presence. Lira objected that trial by videoconference violated his rights to counsel and to a public trial and was contrary to state law, including article 27.18(a) of the code of criminal procedure. The trial court overruled Lira’s objections and the hearing was conducted by Zoom videoconference with Lira in a unit at TDCJ, and his lawyer in another location. Lira pleaded guilty to assault on a public servant, pleaded true to the enhancement. The court found him guilty, found the enhancement true, and assessed punishment according to the plea agreement. “In his sole issue on appeal, Appellant asserts that he had a statutory right to enter his guilty plea in open court and that his right to do so was a substantive right and was therefore not subject to the Texas Supreme Court's emergency orders authorizing a trial court to modify or suspend any and all procedures.” The court of appeals agreed with Lira and reversed his conviction and sentence. Notwithstanding paragraph 3(c) of the Governor’s order, the court refused to hold that a defendant in a criminal case could be required to appear via videoconferencing over his objection. The Governor’s order does not authorize a court to modify “substantive rights,” and a defendant's right to appear in person in open court is a substantive right provided for by statute. The State’s petition for discretionary review was granted. Question Presented If a defendant has to accept the benefit of a negotiated plea agreement via videoconferencing, has he lost a substantive right or been harmed? Huddleston v. State, 2021 WL 1134806 (Tex. App.–Eastland 2021, pet. granted)(not designated for publication) Question Presented If a defendant has to accept the benefit of a negotiated plea agreement via videoconferencing, has he lost a substantive right or been harmed?

Texas Criminal Defense Lawyers Association

Appellate Seminar – Raising the Bar February 4, 2022 Hilton Austin Airport 9515 Hotel Dr Austin, TX 78719

Topic: Ethical Duty to Your Appellate Clients Speaker:

Mandy Miller

9722 Gaston Road, Ste. 150-257 Katy, TX 77494 (832) 900-9884 Phone mandy@mandymillerlegal.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Appellate Seminar – Raising the Bar February 4, 2022 Hilton Austin Airport 9515 Hotel Dr Austin, TX 78719

Topic: Elevating Your Writing Speaker:

Wayne Schiess 727 E Dean Keeton St Austin, TX 78705-3224 (512) 232-1333 Phone WSchiess@law.utexas.edu

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Research on persuasive legal writing By Wayne Schiess Several years ago, I was speaking at a meeting of appellate lawyers and was asked a question something like this: •

Are there any empirical studies showing that the quality of the writing in a brief will help win the appeal?

For a long time, the answer was no—there were few studies on that question. When I first learned about persuasive legal writing, the advice was simple: avoid lying, follow the rules, reduce errors. But today, we have science. Now, many authors are publishing research studies that try to define persuasive legal writing scientifically. Here are seven.

Do intensifiers help? This article reports on a study of the use of intensifiers (very, clearly, obviously, and the like) in appellate briefs. The authors state, correctly, that many experts on legal writing recommend against intensifiers and especially against overusing them. The authors decided to measure intensifier use against outcomes—does using more intensifiers in a brief increase the likelihood of winning? No. Their research showed that using intensifiers frequently in a brief, particularly a brief for the appellant, is usually associated with a statistically significant increase in adverse outcomes for the party using the intensifiers. Lance N. Long & William F. Christensen, Clearly, Using Intensifiers Is Very Bad—Or Is It? 45 Idaho L. Rev. 171 (2008). The authors point out that they could not establish a causal connection—they couldn’t prove it was the intensifiers that caused the briefs to lose—but the correlation is interesting.

Does a more readable brief help? This article, by the same authors, reports on a study of the readability of appellate briefs. The authors measured briefs according to the Flesch Reading Ease scale—a scale of zero to 100 that measures average word length and average sentence length, with “plain English” defined as a score of at least 60. (The briefs in the study tended to score in the low-to-mid 30s on the scale.) The authors measured readability scores against outcomes—does having a higher (better) readability score increase the likelihood of winning? No.

Shorter sentences and smaller words won’t necessarily win. The authors found no statistically significant relationship between the readability score of a brief and its success. Lance N. Long & William F. Christensen, Does the Readability of Your Brief Affect Your Chance of Winning an Appeal?—An Analysis of Readability in Appellate Briefs and Its Correlation with Success on Appeal, 12 J. App. Prac. & Proc. 145 (2011).

Is plainer writing more persuasive? What about informal writing? In this article, the author asked judges to decide which of two versions of a legal argument they considered more persuasive. Half the judges chose between a traditional, legalese argument and a plainer version. The other half chose between the legalese version and an informal version that used first person, contractions, and so on. The study collected responses from trial and appellate judges in state and federal courts and sorted results by those criteria and by age, experience, sex, and geographical setting (rural or urban). Half the judges chose between the legalese version and the plainer version, and a majority preferred the plainer version: • •

Overall, judges considered the plainer version more persuasive than the legalese version 66% to 34%. Federal appellate judges considered the plainer version more persuasive 77% to 23%.

The other half of the judges chose between the legalese version and the informal version. Some key results: • • •

Overall, judges considered the informal version more persuasive than the legalese version 58% to 42%. Female judges chose the informal version 83% to 17%. Rural judges chose the legalese version over the informal version 55% to 45%.

The full article is worth reading: Sean Flammer, Persuading Judges: An Empirical Analysis of Writing Style, Persuasion, and the Use of Plain English, 16 J. Leg. Writing Inst. 184 (2010).

What about readability scores? Brady Coleman and Quy Phung assembled a database of U.S. Supreme Court briefs filed from 1970 to 2004 and performed some calculations: they used the Flesch Reading Ease Scale, which assigns a readability score from zero (extremely difficult) to 100 (very easy); they also used the Flesch-Kincaid Grade Level, which assigns a number representing the years of education the reader would need to read the text comfortably (12 = high school graduate, 16 = college, etc.) Their data show that U.S. Supreme Court briefs are becoming more readable. During the period of their study they found that • • •

the Argument section’s readability increased from 33 to 39. the Argument section’s grade level moved from 15 to 12. the Statement of Facts grade level moved from 14 to 13.

Brady Coleman & Quy Phung, The Language of Supreme Court Briefs: A LargeScale Quantitative Investigation, 11 J. App. Prac. & Process 75, 98, 99 (2010). I’m not willing to believe that these briefs became “simpler” because the writers got dumber. Instead, I think lawyers are learning that readable briefs are more persuasive.

Using more readability scores tells us more In another study, Shaun Spencer and Adam Feldman reviewed 654 summary judgment motions—trial briefs. They scored the briefs with 50 readability measures, assessing word difficulty as well as syllable, letter, and sentence counts, and they produced a readability score for each brief. After controlling for multiple factors, internal and external to the briefs, the authors found that a brief’s readability was significantly correlated with success at summary judgment. Meaning: the easier your brief is to read, the more likely it is that you’ll win. The correlation was even stronger in federal court than in state court. Specifically, if the moving party’s brief was significantly less readable than nonmoving party’s brief, the moving party had only a 42% chance of winning. But if the moving party’s brief was significantly more readable than the nonmoving party’s brief, it had an 85% chance of winning. Shaun B. Spencer & Adam Feldman, Words Count: The Empirical Relationship Between Brief Writing and Summary Judgment Success, 22 J. Leg. Writing Inst. 61, 94 (2018). 3

I should mention that you can assess the readability and grade level of your own writing. In Microsoft Word, go to File and select Options and then Proofing. Check the box for “Show Readability Statistics.” Now, after a spellcheck, you’ll see a display that includes your Reading Ease score and grade level.

What about stories? Lawyers and legal-writing teachers have long believed that stories are persuasive, and now there’s evidence to prove it. This legal-writing expert, Kenneth Chestek, sent briefs written for a fictional case to 95 judges, clerks, staff attorneys, practitioners, and law professors. Each reviewer received two briefs. In one brief, the argument had a narrative component—characters who encounter an obstacle and seek to overcome it—plus the legal argument. The other brief advocated for the same party but with only the legal argument; it had no narrative component. The author’s data showed that 64% found the narrative briefs more persuasive. Kenneth Chestek, Judging by the Numbers: An Empirical Study of the Power of Story, 7 J. Assn. Legal Writing Directors 1, 19 (Fall 2010). That’s a solid, nearly two-thirds majority in favor of story. You probably knew this already, but now there’s science: when you need to write persuasively, science tells you to write readably and tell a story.

What about appeals to emotion? It’s common sense that overtly emotional language is ineffective in persuading judges. The experts say so: •

•

“Judges are innately skeptical about appeals to emotion.” Stephen V. Armstrong & Timothy P. Terrel, Thinking Like a Writer: A Lawyer's Guide to Effective Writing and Editing 289 (3d ed. 2009) “Do not use emotional rhetoric…” Tessa L. Dysart, Hon. Leslie H. Southwick, & Hon. Ruggero J. Aldisert, Winning on Appeal 29 (3d ed. 2017) It typically won’t “play well” to engage in “a blatant appeal to sympathy or other emotions…. Before judges, such an appeal should be avoided.” Antonin Scalia & Brian A. Garner, Making Your Case: The Art of Persuading Judges 31 (2008)

A recent research article supports that advice. The authors, three linguists and a lawyer, assert that judges “respond to briefs that are less emotional … because they convey more credibility.” Ryan C. Black, Matthew E.K. Hall, Ryan J. Owens, & Eve M. Ringsmuth, The Role of Emotional Language in Briefs before the U.S. Supreme Court, J. of Law and Courts 377, 384 (Fall 2016). In the article, the authors calculated the rates for “emotional language” in the briefs and “analyzed how each Supreme Court Justice voted in 1,677 orally argued cases decided during the Court’s 1984-2007 terms, … focus[ing] on cases that included only a single initial merits brief submitted by each party.” Id. at 384. In calculating the rates, the authors relied on a list of 919 word and word stems that experts deem “emotional.” To ensure that the results weren’t driven by other variables, they also attempted to control for the existence of lowercourt dissenting opinions, the briefs’ use of legal authority, the quality of the attorneys writing the briefs, the parties’ status and resources, the presence of amicus briefs, the potential for “ideological congruence” between one party and a justice, and more. The results aren’t surprising. The lower the rate of emotional language, the more likely the brief would get a justice’s vote: For petitioners, using minimal emotional language is associated with a 29% increase in their probability of capturing a justice’s vote. For respondents, … using minimal emotional language is associated with a 100% increase in their probability of winning a justice’s vote. Id. at 378. The authors don’t make strong causal claims, but the correlations offer significant support. Applying the wisdom learned from this article can be tricky, though, and it’s because of the 919 words and word stems that are deemed “emotional.” I’ll show some examples of the listed words, and then offer some advice. Not every word in the list is overtly emotional. The following listed words are deemed “emotional” but are routine enough that they could easily appear in many persuasive legal documents: • • •

active advantage alone 5

• •

appreciate assure

Meanwhile, some words on the list have particular meanings within the law and could be difficult to avoid. Here at least five examples with a parenthetical filling out a common legal phrase: • • • • •

abuse (of discretion) accept (an offer) adverse (party) agree (to purchase) award (damages)

On the other hand, some listed words carry obvious emotional impact and are the kind legal writers might reduce or avoid in persuasive writing: • • • • •

agony appalling arrogant awesome awful

And these examples are only from the letter A. Get the picture? You can’t simply adopt the authors’ list and systematically exclude those 919 words. Besides, the authors themselves acknowledge that not all emotional language can or should be eliminated. Id. at 397. So my advice is to exercise editorial judgment. When you edit your persuasive writing, you know the topic you’re addressing and the stakes; you probably also have a sense of the judge’s temperament. Given that, in general, judges prefer writing that uses fewer emotional words, replace or delete those that are the most obviously emotional, but keep the routine and necessary legal terms.

Texas Criminal Defense Lawyers Association

Appellate Seminar – Raising the Bar February 4, 2022 Hilton Austin Airport 9515 Hotel Dr Austin, TX 78719

Topic: Making your Record – Motions for New Trial Speaker:

Nicole DeBorde Hochglaube 3515 Fannin St. Houston, TX 77004 (713) 526-6300 Phone (713) 808-9444 Fax Nicole@HoustonCriminalDefense.com www.debordelawfirm.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Appellate Seminar – Raising the Bar February 4, 2022 Hilton Austin Airport 9515 Hotel Dr Austin, TX 78719

Topic: Better Research Tools and Techniques Speaker:

Maggie Kiely

7610 Waldon Dr, Austin, TX 78750 maggiekiely24@gmail.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

TCDLEI TCDLEI TCDLEI TCDLEI TCDLEI CDLP CDLP CDLP CDLP CDLP TCDLA TCDLA TCDLA TCDLA TCDLA TCDLEI TCDLEI TCDLEI TCDLEI TCDLEI CDLP CDLP CDLP CDLP CDLP TCDLA TCDLA TCDLA TCDLA TCDLA

OUR HISTORY

Since 1971, Texas Criminal Defense Lawyers Association has provided a statewide forum for criminal defense lawyers. TCDLA is the only voice in the legislature interested in basic fairness in criminal cases. From its beginning as a small association of 260 members, to today with a full staff, officers, board members and more than 2,500 members, TCDLA has played an important role among criminal defense lawyers, providing assistance, support and continuing education. TCDLA has developed a number of affiliations over the last few years which provided a presence and eagerness to help criminal defense lawyers across the state of Texas. TCDLA continues to foster these relationships and develop additional affiliations. As part of this association you share a voice with 2,500 like mind individuals in more than 150 counties across the state.

The Texas Criminal Defense Lawyers Association strives to protect and ensure by rule of law those individual rights guaranteed by the Texas and Federal Constitutions in criminal cases; to resist the constant efforts which are being made to curtail these rights; to encourage cooperation between lawyers engaged in the furtherance of these objectives through educational programs and other assistance; and through this cooperation, education and assistance, to promote justice and the common good.

The Criminal Defense Lawyers Project strives to improve the competency of defense lawyers through designing and promoting a series of continuing legal education seminars and producing legal publications available at low cost to attorneys throughout the state.

The Texas Criminal Defense Lawyers Educational Institute is committed to ensuring the fair administration of justice in Texas through the continuing legal education of criminal defense lawyers and their staffs.

For more information about the association, or to learn about upcoming CLE seminars and events, please visit www.tcdla.com.

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TEXAS INDIGENT DEFENSE COMMISSION – ATTORNEY CASELOAD REPORTING & WEIGHTED CASELOAD STUDY HB 1318 was the most significant bill related to indigent defense passed by the 83rd Texas Legislature. It includes significant new reporting requirements related to caseloads handled by attorneys providing representation to indigent defendants. Commission staff met with a variety of stakeholders, including court and county officials, criminal defense practitioners, legislative staff, national authorities, and others to find ways to effectively implement HB 1318 in a seamless manner while providing meaningful information to policymakers. New Attorney Reporting – HB 1318 included the following provision in Article 26.04, Code of Criminal Procedure: An attorney appointed under this article shall: … not later than October 15 of each year and on a form prescribed by the Texas Indigent Defense Commission, submit to the county information, for the preceding fiscal year, that describes the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in the county under this article and Title 3, Family Code. Beginning October 15, 2014, the bill requires all attorneys handling indigent defense cases to annually report to the county for the preceding fiscal year (October 1st - September 30th) the percentage of the attorney's practice time that was dedicated to appointed 1) criminal cases (trial and appeals) and 2) juvenile work (trial and appeals) in the county. This report should not include work on other types of appointed work such as CPS or guardianship cases, nor should it include practice time devoted to federal criminal appointments. Attorneys must submit this report to each county in which they accept appointments. With significant input from TCDLA leadership, the Commission adopted this form and reporting instructions. The Commission is working with our partners at Texas A&M’s Public Policy Research Institute (PPRI) to create an electronic attorney reporting portal. This will permit attorneys to report their work in all counties at the same time directly to the Commission, with the report viewable by the counties. The judges in each county may specify through their indigent defense plan the method for attorneys to use for submitting their report (online or paper form). Attorneys are not required to use a particular methodology to complete the practice time report. Some may do so by using time records, if they keep such records. Other attorneys may use a case counting methodology. The reporting form will ask the attorney to note what method(s) they used to calculate the percentage figures reported. The Commission is working with TCDLA to develop a worksheet(s) that attorneys may use to help calculate the practice time percentages. The worksheet will help an attorney allocate their practice time among various case types and counties. Use of the worksheet is strictly voluntary and will not be submitted to the county or Commission. Penalties for failing to submit a required practice time report by the October 15th due date may be prescribed by the judges handling criminal or juvenile cases in each county. Many judges have already chosen to amend their indigent defense plans to provide for an attorney’s removal from the list of attorneys eligible to receive future court appointments until they complete the report. This is similar to current enforcement of the annual CLE requirements. Please review your local plan available at: http://tidc.tamu.edu/public.net/Reports/IDPlanNarrative.aspx

New County Reporting of Attorney Caseloads – HB 1318 included the following provision in Section 79.036, Government Code: Not later than November 1 of each year and in the form and manner prescribed by the commission, each county shall prepare and provide to the commission information that describes for the preceding fiscal year the number of appointments under Article 26.04, Code of Criminal Procedure, and Title 3, Family Code, made to each attorney accepting appointments in the county, and information provided to the county by those attorneys under Article 26.04(j)(4), Code of Criminal Procedure. In addition to the attorney reporting requirements above, starting November 1, 2014 the bill requires each county to submit to the Commission annually the information provided to the county by the attorneys described above, along with information that describes for the preceding fiscal year the number of appointments made to each attorney accepting appointments in the county. As to the new county reporting of case and fee data by attorney, the Commission decided based on its consultation with stakeholders to build on the existing reporting infrastructure in the annual Indigent Defense Expenditure Report (IDER). The IDER already requires county auditors (or treasurers) to report the aggregate number of cases paid by case type (Juvenile, Capital Murder, Adult Felony, Adult Misdemeanor, Juvenile Appeals, Felony Appeals, and Misdemeanor Appeals) and by court along with the amount paid each year by November 1st (the same date as the new reporting requirement). The new report will require this information to be broken down by attorney. County auditors have indicated that they already collect this information as part of the attorney payment process. Weighted Caseload Study – HB 1318 included the following provision: Not later than January 1, 2015, the Texas Indigent Defense Commission shall conduct and publish a study for the purpose of determining guidelines for establishing a maximum allowable caseload for a criminal defense attorney that, when the attorney's total caseload, including appointments made under Article 26.04, Code of Criminal Procedure, appointments made under Title 3, Family Code, and other work, is considered, allows the attorney to give each indigent defendant the time and effort necessary to ensure effective representation. The study must be based on relevant policies, performance guidelines, and best practices. In conducting the study … the commission shall consult with criminal defense attorneys, criminal defense attorney associations, the judiciary, and any other organization engaged in the development of criminal indigent defense policy that the commission considers appropriate. The goal is to provide policymakers with an objective analysis of the time required to represent different types of court-appointed cases. This kind of study has not been done in Texas before, but jurisdictions around the country have undertaken similar research because they have recognized the value of understanding data and its power to help improve their justice systems. The Commission is working with PPRI to conduct the weighted caseload study. Attorneys have been recruited to document and categorize their time spent on cases for twelve weeks using simple timekeeping software developed by JusticeWorks. At the conclusion of the data collection phase, a panel of experts will review the time data together with survey data and make recommendations regarding the time demands of various types of cases. While this study will not be the last word on indigent defense needs in Texas, it will be an evidence informed starting point to demonstrate what is necessary to provide appropriate representation in various types of cases. The information learned through the study may serve as a management tool to guide decision making for public defenders and managed assigned counsel systems. For assigned counsel systems, the study will provide objective information to the courts about the resources different types of cases typically demand. This study will also provide policymakers at the state and local level with objective information upon which to base funding decisions. To learn more about this research please visit the study website at http://texaswcl.tamu.edu. WWW.TIDC.TEXAS.GOV

MARCH 2014

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V. Dailing’s statutory-construction argument

III. Criminal law commentators have understood that a grand jury is to return an indictment to the court that impaneled the grand jury

First Court of Appeals

B. Brady v. State – Texas Court of Criminal Appeals (1931

II. The Conundrum in Harris County

VI. The Court of Appeals’ reasoning in Gutierrez

C. Mosley v. State – Texas Court of Criminal Appeals (1962

II. Articles 19 and 20 of the Texas Code of Criminal Procedure

IV. The framing of the issue

VII. Analysis of the Smith opinion

V. The Pacas opinion

IX. The Wiggins opinion

III. The Farris opinion

IV. The Lemus opinion

considered the foregoing arguments

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