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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.

notes (Rule 410. Inadmissibility of Pleas, Plea Discussions and Related Statements)

• It was error to admit statements made by def during "timely pass for plea" hearing, in subsequent pros for murder, following withdrawal of def's guilty plea at conclusion of the "timely pass for plea" hearing. It was not error to exclude those statements in pros for perjury. (Def appeared before judge in a Smith County district court for a "timely pass for plea." That judge, who does not entertain plea bargain agreements, implemented the "timely pass for plea" procedure to encourage defs, who would not otherwise plead guilty without a plea agreement, to resolve their cases short of trial. Under the "timely pass for plea" procedure state consents to def's waiver of jury trial and def enters a guilty plea, both parties understanding that the court will allow def to withdraw the plea if the punishment assessed exceeds that to which def would agree. After evidence supporting the plea is presented, the court hears evidence and argument on the issue of punishment and makes and announces a punishment decision. The trial court then gives def the option of accepting that sentence or withdrawing his plea and receiving a jury trial. If def does not ask to withdraw the plea, the judge enters judgment on the plea. In instant case, def pled guilty to murder, judge in Smith County accepted his plea and his written judicial confession as sufficient evidence supporting the plea, acknowledged that she had received and reviewed the presentence report, and heard evidence and argument on the issue of punishment; state called three witnesses, and then defense called two witnesses, including def. Def waived his Fifth Amendment right to remain silent after being advised by the court that such waiver would make him subject to cross-examination. Def testified, under oath, that he did not, as he had told the Grand Jury, go home to go to sleep, but rather to find a gun, and that he shot victim not because he was defending his sister but because "I was tired of him picking on me and just kept on taking things from me. I just got fed up with it." After def testified and the parties gave their punishment arguments, Smith County judge announced her punishment assessment and def decided he wanted to withdraw his plea. The judge then allowed def to withdraw the plea and set the case for trial the following week, granted def's motion to transfer, and transferred case to Dallas County. In Dallas County trial court admitted def's statements from the Smith County proceeding and Dallas court of appeals reversed; court of criminal appeals affirmed that decision. Def was indicted in Smith County for perjury, trial court excluded the statements from the plea proceeding, Tyler court of appeals reversed, and court of criminal appeals reversed that decision.) Bowie v State (May 19, 2004, No. 639-03, 773-03 & 774-03)

• Statements def made on issue of punishment in course of "timely pass for plea" procedure were protected under Rule 410(3). (Judge, who did not entertain plea bargain agreements, implemented the "timely pass for plea" procedure to encourage defs, who would not otherwise plead guilty without a plea agreement, to resolve their cases short of trial. Under the "timely pass for plea" procedure state consents to def's waiver of jury trial and def enters a guilty plea, both parties understanding that the court will allow def to withdraw the plea if the punishment assessed exceeds that to which def would agree. After evidence supporting the plea is presented, the court hears evidence and argument on the issue of punishment and makes and announces a punishment decision. The trial court then gives def option of accepting that sentence or withdrawing his plea and receiving a jury trial. If def does not ask to withdraw the plea, the judge enters judgment on the plea.) Although the "timely pass for plea" procedure is not identical to procedures under Federal Rule 11, it is comparable to those procedures and consistent with, insofar as it does not conflict with, state plea procedures. Therefore, any statement made in the course of any procedures under a "timely pass for plea" when the guilty plea is later withdrawn, will be protected by Rule 410(3). Contrary to state's contention, Rule 410(3) does not protect only the entry of the plea or written stipulations. If Rule 410(3) were limited only to def's entry of his guilty plea, it would be meaningless, because the plea of guilty is already protected under Rule 410(1). Likewise, evidence to support the guilty plea may be introduced in the form of written stipulations, but may also be presented orally. Furthermore, if def does not waive appearance, confrontation, and cross-examination of witnesses, the evidence may be presented through testimony under oath by witnesses, including def. Therefore, Rule 410(3) does not protect only written stipulations and does not exclude from its protection statements made under oath and subject to cross-examination. Bowie v State (May 19, 2004, No. 639-03, 773-03 & 774-03)

• Texas statutes governing the procedures involved when a defendant pleads guilty are intended to be included in Rule 410(3) as comparable to procedures under Federal Rule 11. The language in Rule 410(3) regarding "comparable state procedures" allows the protection of Rule 410(3) to extend to statements made in the course of similar procedures in other states. Bowie v State (May 19, 2004, No. 639-03, 773-03 & 774-03)

rules (Rule 412. Evidence of Previous Sexual Conduct)

• On appeal from conv for indecency with a child, in which trial judge conducted in camera hearing on admissibility of certain evid and ordered record of that hearing sealed, court of appeals should have unsealed the record. There was no basis for sealing the record; although trial judge's rationale was not revealed in the record, the parties and the appellate court presume that the judge sealed the record pursuant to rule 412(d), but that rule applies to cases of sexual assault, aggravated sexual assault, or an attempt to commit those offenses; it does not on its face apply to a case of indecency with a child. Since the record of the in camera hearing never should have been sealed, the appellate court should have unsealed it and allowed the parties to view it before briefs were filed. Reyna v State (June 29, 2005, No. PD-0255-04)