This page of Baker's Legal Pages contains casenotes from recent decisions of the Texas Court of Criminal Appeals. This information is made available as a free public service for your personal, non-commercial use. While every effort has been made to provide accurate material at this site, it is provided "as is" and no representations are made that it is free of mistakes or inaccuracies. If you inform me of any mistake or inaccuracy that you find here, I will make every effort to determine what corrections are required and to make those changes.

Below are casenotes from recent opinions of the Texas Court of Criminal Appeals, supplementing Baker's Texas Criminal Evidence Handbook. Each casenote is linked to the text of the opinion from which it was derived.

For links to other casesnote pages supplementing Baker's Texas Criminal Evidence Handbook, see the Criminal Evidence Handbook Casenotes Listing.

For links to casesnote pages for other handbooks, see the Main Casenotes Listing.

If you already know the name of a particular recent case of interest, you may go directly to that opinion from the Table of Recent Opinions.

not error (CCP Art. 38.05. Judge Shall Not Discuss Evidence)

• Comments* of trial judge in presence of jury did not taint def's presumption of innocence and did not constitute fundamental error requiring reversal of conviction. First instance was to correct defense counsel's characterization of prior testimony of witness. It is not improper for a trial judge to interject in order to correct a misstatement or misrepresentation of previously admitted testimony. A trial judge's irritation at the defense attorney does not translate to an indication as to the judge's views about def's guilt or innocence. Comments in second instance were aimed at clearing up a point of confusion. A trial judge has broad discretion in maintaining control and expediting the trial. None of the trial judge's comments rose to such a level as to bear on presumption of innocence or vitiate impartiality of the jury. Jasper v State (November 28, 2001, No. 73,817)

error (CCP Art. 38.05. Judge Shall Not Discuss Evidence)

• In pros for violation of Water Code, comment* by trial judge was improper comment on weight of evid; cause remanded for harm analysis. Trial judge did not judicially notice an adjudicative fact, but rather directly addressed the jury on the application of a point of law, immediately before the parties rested and before she read the charge to the jury. Although the trial judge's interpretation of holding in reported decision in another case was essentially correct, it was for the jury to decide if the drainage ditch water in this case constituted "water in the State." Watts v State (March 12, 2003, No. 2115-01)

harmless error (CCP Art. 38.05. Judge Shall Not Discuss Evidence)

• Jury charge in pros for capital murder, over def's objection, that "Intent or knowledge may be inferred by acts done or words spoken," was improper comment on weight of evid, but error was harmless. Brown v State (December 3, 2003, No. 0059-03)

rules (CCP Art. 38.07. Testimony in Corroboration of Victim of Sexual Offense)

• Article 38.07 deals with the sufficiency of evidence required to sustain a conviction for sexual assault but does not act as a hearsay exception, while Article 38.072 deals with the admissibility of evidence that would otherwise be barred by the hearsay rule. Martinez v State (November 2, 2005, No. PD-1654-04)

error (CCP Art. 38.07. Testimony in Corroboration of Victim of Sexual Offense)

• In pros for indecency with a child, testimony by victim's mother of statement to her by victim was not admissible under 38.07 where state was not required to prove victim made any outcry statement. Even if 38.07 did apply, the testimony admitted went well beyond establishing that victim had in fact made an outcry statement. Martinez v State (November 2, 2005, No. PD-1654-04)

rules (CCP Art. 38.071. Testimony of Child Who is Victim of Offense)

• In pros for aggravated sexual assault of a child, where child did not testify and videotaped interviews of child were introduced over def's objection based on claim of denial of right of confrontation, proper analysis of issue is provided in Idaho v Wright, 497 U.S. 805 (1990). It was error for court of appeals to analyze issue under Maryland v. Craig, 497 U.S. 836 (1990), which applies when child does testify at trial and focuses on state's need to protect child. Under Wright, court of appeals should have instead considered whether the videotapes bore sufficient indicia of reliability. This can be shown either by demonstrating that the tapes fall within a "firmly rooted" hearsay exception or that they are supported by "particularized guarantees of trustworthiness." Cause remanded for consideration of def's claim pursuant to Wright. Since the tapes were admitted under Art. 38.071, the court should first consider whether that statute constitutes a firmly rooted hearsay exception. If not, Wright dictates that the evidence is presumptively inadmissible and must be excluded absent a showing of particularized guarantees of trustworthiness. Particularized guarantees of trustworthiness must be shown from the totality of the circumstances surrounding the making of the statement, without considering other evidence admitted at trial. Some factors which may be considered in this analysis include: (a) spontaneity of statement; (b) whether statement is consistently repeated; (c) mental state of declarant; (d) use of terminology unexpected of a child of similar age; (e) lack of motive to fabricate; (f) the giving of an age-appropriate oath before the statement is made; (g) presence of def during interview; (h) presence of child's parent during interview; (i) relationship of declarant to interviewer; (j) length of time between child's first outcry and making of statement; (k) quality of the tape; and (l) method by which interview is conducted, including whether the questions are leading, whether child is given a break when needed, and whether written interrogatories from def are submitted and answered. These factors are not exclusive and courts have considerable leeway in their consideration of appropriate factors. Smith v State (November 28, 2001, No. 1856-00)

• Before a recorded statement of a child may be admitted into evidence, there must be both a showing of competence at the time the testimony was given (section 5(a)(11)) and a showing that there was an oath or some discussion with the child about the issue of truthfulness before the testimony was given (section 5(a)(10)). Torres v State (December 6, 2000, No. 238-00)

• 38.071 sec. 5(a)(10) contains no exception allowing for a failure to substantially satisfy its terms if such failure was for a good reason. As it stands, if the terms of the provision are not substantially satisfied, no matter what the reason, the evidence is inadmissible. Torres v State (December 6, 2000, No. 238-00)

not error: closed circuit tv (CCP Art. 38.071. Testimony of Child Who is Victim of Offense)

• It was not violation of 38.071 to allow two children (witness age 6, victim-witness age 13) to testify by two-way closed circuit television in pros for aggravated sexual assault of child. Even though sec. 1 explicitly authorizes closed circuit television testimony of victim-witnesses 12 years of age or younger, it does not prohibit the use of closed circuit television testimony in circumstances not enumerated in the statute. Marx v State, 987 S.W.2d 577 (Feb. 3, 1999)

error (CCP Art. 38.071. Testimony of Child Who is Victim of Offense)

• It was error to admit videotaped interview of child-victim under 38.071 where child was not placed under oath or admonished at the beginning of the interview, as required by 38.071 sec. 5(a)(10). The discussion that took place at the end of the interview, when the counselor talked with the child about being truthful, did not substantially satisfy the oath or admonishment requirement of sec. 5(a)(10). Cause remanded for harm analysis. Torres v State (December 6, 2000, No. 238-00)

presenting issue objection sufficient (CCP Art. 38.072. Hearsay Statement of Child Abuse Victim)

• No merit to state's contention that def did not make the appropriate objection to admission of outcry testimony in pros for indecency with a child, where record reflected def made numerous objections to the introduction of the outcry evidence. While def never stated the actual rule the judge was apparently using to allow the statements into evidence, his objections were sufficient. Def objected to the testimony as hearsay; it was hearsay, and thus his objection was both proper and sufficient. If the testimony fit some exception or exemption to the hearsay rule (or if the evidence was not being offered for the truth of the matter asserted) the State, as the proponent of the evidence, had the burden of demonstrating the applicability of that exemption or exception. Martinez v State (November 2, 2005, No. PD-1654-04)

outcry evidence (CCP Art. 38.072. Hearsay Statement of Child Abuse Victim)

• Article 38.07 deals with the sufficiency of evidence required to sustain a conviction for sexual assault but does not act as a hearsay exception, while Article 38.072 deals with the admissibility of evidence that would otherwise be barred by the hearsay rule. Martinez v State (November 2, 2005, No. PD-1654-04)

error (CCP Art. 38.072. Hearsay Statement of Child Abuse Victim)

• In pros for indecency with a child, it was error to admit under 38.072, testimony by victim's mother of statement to her by victim, where was no dispute that victim was 13 years old at time of offense; 38.072 applies only if victim is 12 years old or younger at time of offense. Martinez v State (November 2, 2005, No. PD-1654-04)

comment on failure to testify (CCP Art. 38.08. Defendant May Testify)

• Remark of trial judge, "as soon as I hear from the defendant we'll get into it," made when state objected to question asked by def, was not precluded from being a comment on def's failure to testify merely because the remark was before def closed his case. Bustamante v State (June 13, 2001, No. 1954-99)

• Neither the trial judge nor the prosecutor can comment on the failure of an accused to testify. Such a comment violates the privilege against self-incrimination and the freedom from being compelled to testify contained in the Fifth Amendment of the United States Constitution and Article I, sec. 10, of the Texas Constitution. Just as it is improper for the State to argue from a defendant's silence, it is also improper for the trial judge to call attention to a defendant's silence. To violate the right against self-incrimination, the offending language must be viewed from the jury's standpoint and the implication that the comment referred to the defendant's failure to testify must be clear. It is not sufficient that the language might be construed as an implied or indirect allusion. The test is whether the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant's failure to testify. In applying this standard, the context in which the comment was made must be analyzed to determine whether the language used was of such character. Bustamante v State (June 13, 2001, No. 1954-99)

• A statement can be a comment on the defendant's failure to testify even if it is made before the defendant rests his case. The timing of the comment can be a factor to consider in determining whether the comment was manifestly intended to be a comment on the defendant's silence or was of such character that the jury would necessarily take it as such. McCarron v. State, 605 S.W.2d 589 (Tex. Crim. App. [Panel Op.] 1980), did not create a per se rule that a comment made before the close of a defendant's case can never be a comment on the failure to testify. The timing of the comment was a factor considered; it was not dispositive. Bustamante v State (June 13, 2001, No. 1954-99)

defendant as witness (CCP Art. 38.08. Defendant May Testify)

• Defense counsel shoulders the primary responsibility to inform the defendant of his right to testify, including the fact that the ultimate decision belongs to the defendant. Because imparting that information is defense counsel's responsibility, Strickland provides the appropriate framework for addressing an allegation that the defendant's right to testify was denied by defense counsel. Johnson v State (May 25, 2005, No. PD-1623-03)

• Complete denial of the right to testify at trial is not a structural defect but is the type of violation that can be subjected to a harm/prejudice inquiry. Consequently, the usual Strickland prejudice analysis applies: the defendant must show a reasonable probability that the outcome of the proceeding would have been different had his attorney not precluded him from testifying. Johnson v State (May 25, 2005, No. PD-1623-03)

• A defendant may be contradicted, impeached, discredited, attacked, sustained, bolstered, made to give evidence against himself, cross-examined as to new matters, and treated in every respect as any other witness. Cannady v State, 11 S.W.3d 205 (Jan. 5, 2000)

not error defendant as witness (CCP Art. 38.08. Defendant May Testify)

• Cross-examination* of def by state was not improper attack on defense counsel. First instance in cross-examination produced admission by def that what he had said before speaking to an attorney was a lie. This did not imply that the attorney caused def to lie. In second instance, prosecutor's accusation that def was molding his testimony to fit what he understood the law to be was an accusation pointed directly at def, and was not an implication that def’s counsel was involved at all. Cannady v State, 11 S.W.3d 205 (Jan. 5, 2000)

error cured (CCP Art. 38.08. Defendant May Testify)

• Prosecutor’s comment* during direct examination of defense witness about psychological test administered to def, was an improper comment on def’s failure to testify, but when viewed in context, it was intended to prevent the witness from serving as a conduit through which def could testify without taking the stand. Though the comment was in front of the jury, it was directed to the court. The comment was not so blatant that it could not be cured by an instruction to disregard. Court’s instruction to disregard cured the error. Moore v State, 999 S.W.2d 385 (April 21, 1999)

rules on corroboration (CCP Art. 38.14. Testimony of Accomplice)

• 38.14, by its very terms, requires corroboration of accomplice testimony for a conviction only. This means there must be some non-accomplice evidence tending to connect the defendant to the crime, not to every element of the crime. The corroboration requirements are inapplicable to the testimony of accomplice witnesses regarding the use or exhibition of a deadly weapon. Vasquez v State (September 12, 2001, No. 1573-00)

• In conducting a sufficiency review under the accomplice-witness rule, a reviewing court must eliminate the accomplice testimony from consideration and then examine the remaining portions of the record to see if there is any evidence that tends to connect the accused with the commission of the crime. "Tendency to connect" rather than rational sufficiency is the standard: the corroborating evidence need not be sufficient by itself to establish guilt. The accomplice-witness rule is not based upon federal or state constitutional notions of sufficiency; there simply needs to be "other" evidence tending to connect the defendant to the offense. Solomon v State (June 20, 2001, No. 73,459)

who is accomplice (CCP Art. 38.14. Testimony of Accomplice)

• Blake v. State, 971 S.W.2d 451 (Tex. Crim. App. 1998), which abolished the juvenile exception to the accomplice witness rule, applies retroactively to all cases pending on direct appeal or not yet final when Blake was decided. Taylor v State, 10 S.W.3d 673 (Jan. 26, 2000)

held not accomplice (CCP Art. 38.14. Testimony of Accomplice)

• In pros for delivery of cocaine to a minor, buyer is not an accomplice to that delivery, even though def could not have committed offense of delivery without buyer's participation. Any offense stemming from buyer's receipt of the cocaine is separate from the delivery that def committed. Once def transferred possession of the cocaine to buyer, his participation in that offense, the offense with which he was charged, ceased. The two offenses are hermetically separated. While buyer may have committed some type of offense by receiving the cocaine, she did not commit the same offense that def committed, and, therefore, she could not have been prosecuted for the delivery offense that def committed. Rodriguez v State (March 26, 2003, No. 290-01)

• In pros for capital murder, no fact issue was raised of whether Y and Z were accomplice witnesses, where fact issue was raised as to whether X was an accomplice witness based on (1) X’s presence in the car with def when the crime occurred, (2) evidence that the crime was a gang-motivated crime, (3) X's membership in the same gang as def, and (4) X’s efforts to cover up the crime, but one of these factors was missing for Y and Z: Y did not cover up the crime and Z was not present during the crime, and was no other evidence to link them to the crime. Medina v State, 7 S.W.3d 633 (Oct. 6, 1999)

• No merit to contention that X was an accomplice as a matter of law because X was in possession of the videocassette recorder taken from the victim in the instant case. When X originally received the videocassette from def, there is no indication that he knew it was stolen or otherwise knew anything about the instant crime. When X later found out that police detectives wanted to talk to def, he began to suspect the video recorder might have something to do with it. Kutzner v State, 994 S.W.2d 180 (June 9, 1999)

• No merit to contention that X was an accomplice as a matter of law because during the investigation of this case, X became a suspect and was arrested and charged with capital murder. X was never indicted for the instant offense. Although he was initially suspected and even charged with the offense, officers dismissed the charges and released him after they investigated his statements. Kutzner v State, 994 S.W.2d 180 (June 9, 1999)

• In pros for capital murder, evid did not raise fact issue of whether witness was accomplice witness, even though (1) the crime was a gang-motivated crime, (2) witness was member of same gang as def, and (3) witness made efforts to cover up the crime, but witness was not present during the crime. Medina v State, 994 S.W.2d 153 (June 2, 1999)

• In pros for capital murder, evid did not raise fact issue of whether witness was accomplice witness, even though (1) witness was present in car with def when offense was committed (drive-by shootings), (2) the crime was a gang-motivated crime, and (3) witness was member of same gang as def, but was no evid witness made efforts to cover up the crime. Medina v State, 994 S.W.2d 153 (June 2, 1999)

held not accomplice - mere presence (CCP Art. 38.14. Testimony of Accomplice)

• Witness was not accomplice witness where only evid indicating that possibility was her presence at scene of crime; her mere presence during commission of crime was not enough to make her an accomplice witness. Her testimony could be considered in determining suff of evid to corroborate other witnesses who were accomplice witnesses. Solomon v State (June 20, 2001, No. 73,459)

held not accomplice - complicity in another crime (CCP Art. 38.14. Testimony of Accomplice)

• No merit to contention that X was an accomplice as a matter of law because X’s name was endorsed on the back of the money order at issue in a similar capital murder case. Although the State presented evidence in the instant case of a money order with X’s name written on it, this money order had been taken in another offense and no evidence existed that X ever even possessed the instrument. Even if he had, complicity with an accused in the commission of another offense does not make a witness an accomplice in the offense for which the accused is on trial. Kutzner v State, 994 S.W.2d 180 (June 9, 1999)

test for corroboration (CCP Art. 38.14. Testimony of Accomplice)

• Court declined to impose legal and factual sufficiency standards upon a review of accomplice witness testimony under Article 38.14. The accomplice witness rule is a statutorily imposed sufficiency review and is not derived from federal or state constitutional principles that define the legal and factual sufficiency standards. The burden established by the Legislature is that there be other evidence tending to connect the defendant with the offense. Cathey v State, 992 S.W.2d 460 (April 21, 1999)

charge: rules (CCP Art. 38.14. Testimony of Accomplice)

• When conducting harmless error analysis of error in denying accomplice witness charge, court determines the strength of a particular item of non-accomplice evidence by examining (1) its reliability or believability and (2) the strength of its tendency to connect def to the crime. The reliability inquiry may be satisfied if: (1) there is non-accomplice evidence, and (2) there is no rational and articulable basis for disregarding the non-accomplice evidence or finding that it fails to connect the defendant to the offense. Even with a rational and articulable basis for disregarding the corroborating evidence, other factors may affect the harm analysis, as where the weakness of the evidence of accomplice status, combined with the significant non-accomplice evidence, renders the error harmless. Herron v State (October 9, 2002, No. 73,455)

charge: no error (CCP Art. 38.14. Testimony of Accomplice)

• It was not error to fail to charge jury that accomplices could not corroborate each other's testimony, where there was only one accomplice witness in case. Solomon v State (June 20, 2001, No. 73,459)

charge: no error: accomplice as matter of law (CCP Art. 38.14. Testimony of Accomplice)

• It was not error to refuse to charge that X was accomplice witness as matter of law where there was no evidence that X committed any affirmative act to promote the commission of the instant crime either before, during, or after the offense. Kutzner v State, 994 S.W.2d 180 (June 9, 1999)

charge: not error to deny accomplice witness charge (CCP Art. 38.14. Testimony of Accomplice)

• In pros for capital murder it was not error to deny accomplice witness charge as to two witnesses, where multiple murders had already been committed before they arrived at scene, and was no evid victims were alive when witnesses arrived or that they were in any way involved in planning the murders. Their assistance in disposing of the bodies after offense was committed did not make them accomplices. No merit to contention they were accomplices under 7.02(b). Paredes v State (January 14, 2004, No. 74,293)

charge: error harmless (CCP Art. 38.14. Testimony of Accomplice)

• It was error to refuse accomplice witness charge in pros for capital murder in course of burglary and robbery where accomplice witnesses were both indicted for the underlying burglary and aggravated robbery for their participation in criminal transaction that gave rise to capital murder indictment. Because they were indicted for lesser included offenses, both were accomplices as matter of law. Error was harmless where non-accomplice evid consisted of (1) def's confession, (2) def's clothes found at the crime scene, (3) stolen property found in def's possession, (4) the murder weapon found in def's possession, and (5) def's fingerprints found on several items within the victim's truck. While there might be a rational and articulable basis for disregarding the confession (due to voluntariness challenge), there was no such basis in the record for doubting the reliability of the remaining four items of non-accomplice evidence. Moreover, those four pieces of circumstantial evidence clearly connected def to the offense. There was no persuasive innocent explanation for the presence of def's clothes and fingerprints at the scene, or for his possession of stolen property and the murder weapon. Herron v State (October 9, 2002, No. 73,455)

• In pros for capital murder, it was error to deny submission of fact issue on whether X was accomplice witness, based on (1) X’s presence in the car with def when the crime occurred, (2) evidence that the crime was a gang-motivated crime, (3) X's membership in the same gang as def, and (4) X’s efforts to cover up the crime. But error was harmless where there was substantial non-accomplice evidence linking def to the offense. Medina v State, 7 S.W.3d 633 (Oct. 6, 1999)

• In pros for capital murder it was error to deny charge on accomplice witness as fact issue, where (1) witness was present in car with def when offense was committed (drive-by shootings), (2) the crime was a gang-motivated crime, (3) witness was member of same gang as def, and (4) witness made efforts to cover up the crime. Error was harmless in light of substantial amount of non-accomplice evidence connecting def to the crime, and the tenuousness of evidence that witness was an accomplice. Medina v State, 994 S.W.2d 153 (June 2, 1999)