The following is a summary of selected criminal opinions issued by the Third Court of Appeals from June 2024. The summary is an overview; please review the entire opinions. The subsequent history is current as of January 6, 2024.
JURY DELIBERATIONS ASSISTANCE OF COUNSEL: Appellate court could not conclude that defendant was denied assistance of counsel during jury deliberations when record was silent regarding whether trial court attempted to secure trial counsel’s presence during any readback of testimony in response to jury notes.
Bostic v. State, No. 03-22-00633CR (Tex. App.—Austin June 21, 2024, no pet.) (mem. op., not designated for publication).
Bostic was tried and convicted of two counts of aggravated sexual assault of a child. The clerk’s record contained five notes from the jury asking for portions of trial testimony or clarifications of facts. The record did not contain any acknowledgment or response to the notes from the judge or any mention of them in the reporter’s record. On appeal, Bostic asserted that the trial court denied him assistance of counsel during a critical stage of trial because the record was silent regarding whether the trial court made any effort to secure trial counsel’s presence during any readback of testimony in response to the jury notes. Bostic argued that this was a violation of Article 36.27 of the Code of Criminal Procedure, which requires that before answering the jury’s question, the trial court “shall use reasonable diligence to secure the presence of the defendant and his counsel” and “shall answer any such communication in writing,” that “[t]he written instruction or answer to the communication shall be read in open court unless expressly waived by the defendant,” and that “[a]ll such proceedings in felony cases shall be a part of the record and recorded by the court reporter.” However, the court observed that “a presumption of regularity applies to Article 36.27 requirements when the record is silent regarding compliance by the trial court” and that “unless the record establishes to the contrary, we presume that the trial court complied with Article 36.27,” including the requirement of counsel’s presence. The court added that such a presumption did not violate federal due process. The court also disagreed with Bostic’s contention that applying such a presumption in this case left him without a remedy, noting that after discovering the jury notes, Bostic could have filed a motion for new trial, which would have provided him with an opportunity to develop the record.
LESSER-INCLUDED OFFENSES – FELONY MURDER: Manslaughter and criminally negligent homicide were not lesser-included offenses of felony murder as charged in the indictment.
Williams v. State, 693 S.W.3d 877 (Tex. App.—Austin 2024, no pet.).
Williams was convicted of felony murder after a highspeed police chase resulted in a crash that killed the passenger of his motorcycle. During the charge conference, Williams requested jury instructions on manslaughter and criminally negligent homicide, which he argued were lesser-included offenses. The trial court denied the request, and the appellate court affirmed. The court examined whether the proposed lesser-included offenses could be established by proof of the same or less facts required to establish the commission of the offense charged. The key difference between felony murder and other homicide offenses is that “[f]elony murder attaches no culpable mental state to the death of an individual,” whereas manslaughter requires recklessness and criminally negligent homicide requires criminal negligence. Thus, “the requisite mental states for intentionally, knowingly, recklessly, and criminally negligently causing death are all subjective mental states that are focused on the defendant’s subjective mindset regarding the result of his conduct, i.e., the death of the victim.” Consequently, “manslaughter and criminally negligent homicide both require proof of an element that felony murder does not—a culpable mental state regarding the death of the individual.” Williams acknowledged “that under the statutory language of felony murder, manslaughter and criminally negligent homicide are not lesser included offenses.” However, the indictment added a culpable mental state of “intentionally or knowingly” before the element of “commit or attempt to commit an act clearly dangerous to human life,” and Williams contended that this language required the State to prove that Williams intentionally or knowingly caused the death of the victim. The court disagreed, explaining that “as charged, the mental states ‘intentionally and knowingly’ modify the alleged action committed by Williams and commission of the felony, but do not apply to his subjective intent or knowledge about whether [the victim] would die.” Because the mental states in the indictment did not relate to “causing death” but “rather to the act that caused death and to the commission of the felony, manslaughter and criminally negligent homicide both include an element not included in the offense charged—a mental state for causing the result of death.”