Criminal Law (Year in Review)

Co-authored Texas Bar Journal year-in-review surveying three 2023 Texas Court of Criminal Appeals decisions. Delarosa v. State construes Tex. Penal Code §22.011 as enumerating two distinct sexual-assault theories, consent-based and minority-based, and refuses to treat minority as a route to proving lack of consent; the CCA ordered judgments of acquittal for evidentiary insufficiency on the consent theory pleaded. Ex Parte Escobar tests post-conviction DNA challenges in a capital case where the State conceded the DNA was the "backbone" of its case and that the rest had "significant shortcomings"; the CCA nevertheless denied habeas relief, holding the applicant did not carry the burden of proving the results actually false. Massey v. State extends attenuation-of-taint doctrine by treating resisting arrest as an intervening circumstance dissipating the taint of an illegal Terry frisk, even when the resistance was a foreseeable response to the original illegality. Together the trio maps the CCA's continued narrowing of defense-favorable doctrine across statutory construction, habeas, and Fourth Amendment exclusion.

Professor Metze and Megan Gower's year-in-review covers three Court of Criminal Appeals opinions Texas practitioners should not miss going into 2024.

Delarosa v. State is a statutory-construction case under Tex. Penal Code §22.011. The defendant was convicted on three counts of sexual assault of a child. The CCA held that the statute "sets out two types of sexual assault," one keyed to lack of consent and one keyed to the victim's minority, and that the two theories are not interchangeable. Minority is not a backdoor for proving lack of consent under §22.011's specifically enumerated consent grounds. Because the State's evidence did not satisfy the consent theory pleaded, the CCA entered judgments of acquittal for insufficiency. The takeaway for trial counsel and prosecutors: charge under the correct subsection and prove the elements that subsection actually requires.

Ex Parte Escobar is a capital habeas case turning on DNA contamination. The State conceded the DNA evidence was the "backbone" of its case and that other evidence had "significant shortcomings." Even so, the CCA denied relief, holding that the applicant had not proved the DNA results were actually false. The opinion confirms how steep the burden remains for capital applicants raising forensic-integrity claims, even when the State itself acknowledges the centrality of the disputed evidence.

Massey v. State is the most doctrinally aggressive of the three. After an illegal Terry frisk, the defendant resisted arrest. The CCA held that the resistance was an intervening circumstance sufficient to attenuate the taint of the prior Fourth Amendment violation, even though that resistance was a predictable consequence of the illegality. For defense counsel running suppression motions, Massey substantially shrinks the attenuation analysis defendants can run on post-frisk conduct, and the article flags it as a doctrinal shift worth tracking.

Patrick Metze and Megan Gower's 2023 Year-in-Review piece covers three Texas Court of Criminal Appeals decisions worth knowing for anyone on the Texas criminal-courts beat. Delarosa v. State: the CCA acknowledged it had been reading the sexual-assault-of-a-child statute (Tex. Penal Code §22.011) wrong for years and corrected itself with judgments of acquittal. Ex Parte Escobar: a capital habeas case where the state itself admitted the DNA was contaminated; the CCA denied habeas relief anyway. Massey v. State: an illegal Terry frisk that ended in an arrest the court let stand because the suspect ran, even though the flight was a predictable consequence of the illegal frisk. Each ruling is independently newsworthy for the relevant beat. The publication citation is currently listed as Texas Bar Journal pending verification of a canonical South Texas Law Review version.

Each year, the Texas Bar Journal runs short reviews of the previous year's most important rulings in different practice areas so working lawyers can stay current. Professor Patrick Metze and Megan Gower wrote the 2023 review for criminal law. They picked three decisions from the Texas Court of Criminal Appeals, the state's highest criminal court, that practicing defense lawyers and prosecutors need to know.

The first, Delarosa v. State, is about sexual assault of a child. The court ruled that the relevant statute actually describes two different crimes, one based on lack of consent and one based on the victim being a minor, and that prosecutors have to pick the right one and prove what that one requires. Because the state had not, the convictions were thrown out and judgments of acquittal entered.

The second, Ex Parte Escobar, is a capital case. The DNA evidence had contamination problems, and the state itself admitted the DNA was the "backbone" of its case while the rest had "significant shortcomings." Even so, the court denied relief, saying the defendant had not proved the DNA was actually wrong, just that it was suspect.

The third, Massey v. State, is about police searches. After an illegal frisk, the defendant resisted arrest. The court ruled that the resistance itself broke the connection to the illegal frisk, even though resisting was a foreseeable reaction.

Across all three, the article tracks how the Court of Criminal Appeals is making it harder, not easier, for criminal defendants to win.

Every year, working lawyers need to know which court decisions changed the rules they practice under. Professor Metze and his co-author Megan Gower wrote up three Texas criminal law cases from 2023 worth knowing.

The first, Delarosa v. State, was about sexual assault of a child: the Texas Court of Criminal Appeals realized it had been reading the statute wrong for years and corrected itself. The second, Ex Parte Escobar, was about DNA evidence in a capital case where the state itself admitted the DNA was contaminated. The court ruled against the defendant anyway. The third, Massey v. State, was about a police search that started illegally but ended in an arrest the court let stand because the suspect ran. It's the kind of writing lawyers read in December to catch up on what their job became that year.