Criminal Law (Year in Review)

The annual survey is an underexamined genre: a compressed, practitioner-facing record of where a jurisdiction's highest criminal court actually moved in a given year. In this Texas Bar Journal review, Metze and Gower select three 2023 Court of Criminal Appeals decisions whose combined signal is doctrinal narrowing across three distinct registers. Delarosa v. State is a statutory construction correction: the court reads the plain language of Penal Code Section 22.011 as setting out two types of sexual assault, one grounded in lack of consent and one in the victim's minority, and refuses to let minority substitute for the consent grounds the statute specifically enumerates, entering judgments of acquittal for insufficient evidence. Ex Parte Escobar sharpens the actual-falsity standard in habeas: even where the State conceded contaminated DNA was the "backbone" of a capital case and the remaining evidence had "significant shortcomings," relief was denied because the applicant did not prove the results actually false. Massey v. State expands attenuation of taint, treating resisting arrest as an intervening circumstance that dissipates an illegal Terry frisk's taint even when the resistance was a predictable consequence of the initial illegality. Read together, the survey documents a court tightening nearly every door it reviews.

Three 2023 Court of Criminal Appeals decisions should change how you charge, plead, and litigate this year. First, Delarosa v. State. The court held that the plain language of Penal Code Section 22.011 sets out two types of sexual assault, one based on lack of consent and one based on the victim's minority, and that minority cannot establish lack of consent under the statute's enumerated grounds. The court entered judgments of acquittal for insufficient evidence. If you prosecute, charge the correct theory and prove that theory's elements; if you defend, scrutinize the indictment against the proof, because a mismatch now means acquittal, not retrial. Second, Ex Parte Escobar. In a capital habeas proceeding, the State conceded its DNA evidence was the "backbone" of its case and that the other evidence had "significant shortcomings." The court denied relief anyway, holding the applicant failed to prove the DNA results were actually false. Contamination alone will not carry a post-conviction forensic claim; build your record toward actual falsity or expect denial. Third, Massey v. State. The court held that resisting arrest is an intervening circumstance that attenuates the taint of an illegal Terry frisk, even where the resistance was a predictable consequence of the illegality. Expect the State to invoke Massey against your suppression motions whenever your client did anything at all after the bad stop.

In 2023, Texas's highest criminal court quietly redrew three lines in criminal law. The most striking case involves DNA the state itself admitted was compromised. That case is Ex Parte Escobar, a capital case. The State of Texas conceded that contaminated DNA evidence was the "backbone" of its case and that its other evidence had "significant shortcomings." The Court of Criminal Appeals denied relief anyway. It ruled that the man challenging his conviction had not proved the DNA results were actually false. Suspect evidence, in other words, is not the same as false evidence. The second ruling cut the other way. In Delarosa v. State, the court read the sexual assault statute closely and found that it describes two distinct crimes, one turning on consent and one on the victim's minority. Prosecutors, it held, cannot use the victim's age to prove lack of consent. The court threw out three convictions and entered judgments of acquittal. The third, Massey v. State, reshaped street-level policing law. After an illegal pat-down, a man resisted arrest. The court held that the resistance itself broke the legal chain back to the illegal frisk, even though resisting was a predictable reaction to it. Professor Patrick Metze and Megan Gower's year-in-review for the Texas Bar Journal is the practitioners' map of all three, and of the pattern they form.

These three 2023 rulings from the Texas Court of Criminal Appeals set the rules that apply if you, or someone you love, is ever searched, charged, or convicted in Texas. Massey v. State matters if you're ever stopped by police. Officers frisked a man illegally, he resisted arrest, and the court ruled that the resistance cut the legal connection to the illegal frisk, even though resisting was a predictable reaction to being unlawfully searched. What that means for you: if police search you illegally and you react badly, your reaction can wipe out the legal consequences of what they did first. Ex Parte Escobar matters if a conviction ever rests on forensic evidence. In a death penalty case, the state admitted its contaminated DNA evidence was the "backbone" of its case and that the rest of its evidence had "significant shortcomings." The court still refused relief, because the man couldn't prove the DNA results were actually false. Showing the evidence was bad isn't enough; you have to prove it was wrong. Delarosa v. State is the counterweight: the court said prosecutors have to charge and prove the specific crime the statute actually defines, and when the state proved the wrong theory, the court erased the convictions entirely. The rules are strict in both directions. Knowing which way each one cuts is worth a few minutes of your attention.

Here's how the system actually works, in three 2023 Texas rulings. Sometimes courts correct the government: in Delarosa v. State, the Court of Criminal Appeals read the sexual assault statute carefully, found the state had proved the wrong theory of the crime, and erased the convictions with judgments of acquittal. The words of the statute get enforced as written, even when that frees a convicted defendant. But sometimes courts let convictions stand on admittedly bad evidence: in Ex Parte Escobar, the state conceded its contaminated DNA was the "backbone" of a death penalty case, and relief was still denied because the defendant couldn't prove the results were actually false. And in Massey v. State, resisting arrest after an illegal frisk cut off the frisk's legal consequences. The deeper lesson? The system runs on burdens of proof, and who's carrying the burden usually decides who wins.