Significant Texas Opinions

Question 1

Does an outcry statement apply to a video recording of that statement?

Answer 1

Bays v. State TCA 2013
No. Limited to live testimony of outcry witness. Child-complainant’s own videotape statement does not meet the requirements of the statute, 38.072.

Question 2

In Texas, does the pre-trial hearing on for admission of the outcry statement constitute an opportunity to cross-examine for 6th Amendment concerns?

Answer 2

Sanchez v. State TCA 2011

No. The hearing under 38.072 is limited to a determination of reliability (time, content, circumstances)

Question 3

What is the purpose of pre-trial hearing for outcry statement and how is it limited?

Answer 3

TCCP 38.072
Court to determine reliability of STATEMENT based on: time, content, and circumstances
Sanchez v. State 2011 - NOT for determining credibility of the OUTCRY WITNESS, that is for the jury

Question 4

How do you determine an outcry witness if child told multiple people?

Answer 4

Robinett v. State, Tex. App.–Amarillo 2012
The proper outcry witness is not to be determined by comparing the statements the child gave to different individuals and then deciding which person received the most detailed statement about the offense.
it is possible to have more than one proper outcry witness, so long as the outcries concerned different events and not simply repetition of the same event told to different individuals

Question 5

Can a prosecutor comment on D’s failure to take responsibility if D testifies at guilt/innocence but not punishment?

Answer 5

Randolph v. State 2011
Yes. If D denies offense in G/I it’s “fair game”
TEST: whether language used was “manifestly” intended or was of such a character that the jury would necessarily and naturally take it as a comment on D’s failure to testify.

Question 6

On appeal, what does court consider as to whether prosecutorial misconduct in the form of improper jury argument warrants a mistrial?

Answer 6

1) severity ;
2) efficacy of curative measure; and
3) the certainty of conviction absent the misconduct
Archie v. State - Tex. Crim. App. 2007

Question 7

What is the standard for “voluntary” statements by accused?

Answer 7

Creager TCA 1997
Among other things…
Not influenced by fear or hope of third party - whether suspects will was overcome

Question 8

Does 38.22 apply to CPS workers?

Answer 8

Wilkerson v. State 2005

No. not if not working in concert with law enforcement - so make law enforcement connection

Question 9

What constitutes “custody” for 38.22?

Answer 9

Dowthitt TCA 1996
1. physically deprived of freedom of action in significant way;
2. when law enforcement tells D he cannot leave;
3. law enforcement create situation that would lead a reasonable person to believe not free to leave;
4. when probable cause to arrest, but law enforcement doesn’t tell D he can leave
Same as Miranda

Question 10

How does 38.22 and Miranda differ?

Answer 10

38.22 includes “right to terminate interview at anytime”

Question 11

What’s the appellate standard for 38.22?

Answer 11

Bifurcated:
Credibility - abuse of discretion
Historical Facts - de novo

Question 12

Is the jury’s job in 38.22 instruction the same as 38.23?

Answer 12

No. 38.23 is just for disputed fact;

38.22 jury applies historical facts to question or voluntariness.

Question 13

Can court make ruling on affidavits in 38.22 hearing?

Answer 13

No. It’s not a “paper hearing” like 11.07

Question 14

Does waiver of appeal by stating “no objection” also waive right to jury instruction under 38.23?

Answer 14

No.

Question 15

What is the requirement to trigger a jury instruction under 38.23?

Answer 15

1. Evidence heard by jury raises a fact issue;
2. Fact must be affirmatively contested;
3. Contested facts must be material to lawfulness of obtaining evidence

Question 16

How is 38.23 “good faith” exception different that Federal “good faith” exception?

Answer 16

38.23 REQUIRES probable cause, Federal only requires officer’s belief in probable case is in good faith

Question 17

Does “illegally seized” under 38.23 apply to non-law enforcement?

Answer 17

Yes. Others cannot illegal seize items.

Question 18

Does “attenuation of taint” apply to 38.23?

Answer 18

Yes. It applies to “obtaining”

Question 19

Can an officer create a false DNA or fingerprint report to get a confession from the accused?

Answer 19

No, it’s tampering with evidence under 37.09 - leads to suppression under 38.23

Neither police nor private individuals have a license to fabricate documents or other evidence and then use them to affect a criminal investigation or other official proceeding

Wilson v. State, 311 S.W.3d 452, 461 (Tex. Crim. App. 2010)

Question 20

Does Texas have an “Inevitable Discovery Rule”?

Answer 20

No. 38.23 excludes illegally OBTAINED evidence - regardless of how it MIGHT have been obtained
Daugherty 1996

Question 21

Can a search warrant be issued based on illegally obtained evidence?

Answer 21

No. Unless warrant would be independently valid, 38.23 dictates exclusion

Question 22

Diminished capacity in Texas

Answer 22

No.

Can use mental illness to negate mens rea BUT NOT say that D was incapable of forming mens rea

Question 23

What should D counsel do if relationship evidence is let in for murder pursuant to 38.36?

Answer 23

Request limiting instruction and jury instruction

Question 24

Can cops stick around for dog sniff after owner withdraws consent?

Answer 24

Weaver CCA 2012 – once D revokes consent to search, police cannot remain on premises to conduct a dog sniff search; Officer can only remain on “portion of premises which is open to the public”

Question 25

Driving on shoulder = reasonable suspicion?

Answer 25

Lothrop CCA 2012 – driving on improved shoulder over railroad tracks not reasonable suspicion without testimony that it was “unsafe”

Question 26

Search warrant for blood without time?

Answer 26

Crider CCA 2012 – warrant must be sufficient to support probable-cause finding that the evidence is still available and in the same location – warrant failed to note TIME of offense, so not adequate

Question 27

Explain standard to challenge Out-of-Court Identification.

Answer 27

Whether (1) impermissible suggestive procedure was so (2) “unnecessarily suggestive and conducive to irreparable mistaken identification that denied due process of law”
Vasquez Houston 1st 2003
Totality of Circumstances – Factors
1. Witness opportunity to view criminal act
2. Witness’ degree of attention
3. Accuracy of suspect’s description
4. Level of certainty at time of confrontation
5. Time between crime and confrontation
Movant – Clear & Convincing

Question 28

Explain “Speedy Trial” analysis:

Answer 28

The right arises once prosecution begins (arrest OR indictment):
Then balance: Barker v. Wingo Factors 
1.	Length of delay;
2.	Reason for delay; 
3.	Defendant’s assertion of right; 
4.	Prejudice to Defendant.

Question 29

Explain challenge to “In-Court Identification”?

Answer 29

De novo - whether the suggestiveness of a pretrial photo array may have influenced an in-court identification
(1) whether the out-of-court identification procedure was impermissibly suggestive and, if so,
(2) whether the impermissibly suggestive procedure gave rise to the substantial likelihood of irreparable misidentification.
Totality of the Circumstances
Clear and Convincing
Factors:
(1) witness‘s opportunity to view the criminal at the time of the crime;
(2) the witness‘s degree of attention;
(3) the accuracy of the witness‘s prior description of the criminal;
(4) the witness‘s level of certainty at the time of the confrontation, and;
(5) the length of time between the offense and the confrontation.
Gamboa v. State, 296 S.W.3d 574, 581–82 (Tex. Crim. App. 2009)

Question 30

What does the court consider if party fails to give notice of expert witness?

Answer 30

1. Whether party’s actions failing to timely disclose constituted bad faith;
2. Whether opposing party could have reasonably anticipated undisclosed witness would testify
   Johnson Houston 14 ‘07

Question 31

What does D have to subjectively know to satisfy mens rea of “negligence”?

Answer 31

Not subjective.
It’s based on actors failure to perceive the substantial risk.
Montgomery v. State 2012

Question 32

What if you are aiming at someone, shoot someone else, and then re-aim and shoot your original target?

Answer 32

Seperate intent, so two offenses.

Ex parte Norris TCA 2012

Question 33

What jury charge should you always ask for if “transferred intent”?

Answer 33

Mistake of Fact

Question 34

Does indictment have to allege law of parties?

Answer 34

No. Powell TCA 2006

Question 35

Does State have to prove D should have anticipated method of murder to make D criminal responsible for the act?

Answer 35

No. In re State ex. rel. Weeks 2013

Question 36

How does court determine if Law of Parties charge should be submitted to jury?

Answer 36

No need for it in indictment.
Test: Remove co-D conduct. Look at just D conduct. If sufficient for guilt alone, then NO law of parties.
Brown 1986