Trial Court May Reopen a Suppression Hearing

In 1996, the Texas Court of Criminal Appeals held in Rachal v. State, 917 S.W.2d 799, that when reviewing a trial court’s decision on a motion to suppress, an appellate court should look “only to the evidence adduced at the suppression hearing,” unless the “suppression issue is consensually re-litigated by the parties during trial on the merits.”

In a recent case in the CCA, the Appellant, Gary Lyn Black, who was convicted at trial of possession of methamphetamine with intent to deliver, argued on appeal that:

a trial court, once it has ruled on a pretrial motion to suppress, lacks the authority to “re-open” the suppression issue unless the defendant has “made an election” to do so by either subsequently re-raising the suppression issue himself or acquiescing in the State’s reintroduction of the issue at trial.

Appellant relied on the CCA’s holding in Rachal to support his position.  The State countered by arguing that the Rachal holding “speaks only to a limitation on what is available for appellate review of a trial court’s ultimate ruling on a pretrial suppression motion,” and not to the trial court’s authority to re-open a suppress motion.  The CCA agreed with the State.

In an 8-1 decision that relied largely on a 1993 Court of Appeals opinion (Montalvo v. State, 846 S.W.2d 133 (Tex. App.—Austin 1993, no pet.)), the CCA explained:

A pretrial ruling on such a motion is interlocutory in nature. As such, it should be regarded as just as much the subject of reconsideration and revision as any other ruling on the admissibility of evidence under Rule 104 of the Texas Rules of Evidence, which a trial court may revisit at its discretion at any time during the course of a trial.

In Black’s case, the CCA went on to hold that the trial court had the discretionary authority to reopen the suppression hearing, even mid-trial, to allow the State to present additional evidence.  To clarify that its current holding in Black did not disturb previous precedent, the CCA expressed a general rule and a corollary rule that explain what evidence appellate courts should consider when reviewing motions to suppress.

GENERAL RULE: In cases in which the trial court is never asked, or is asked but declines, to exercise its discretionary authority to reopen the suppression hearing, appellate review of its ruling on the motion to suppress is ordinarily limited to that evidence presented at the pretrial hearing – the evidence that was before the court at the time of its decision.

The exception to the General Rule, the CCA provided, was “if the parties consensually broach the suppression issue again before the fact-finder at trial, the reviewing court should also consider” that evidence in gauging the propriety of the trial court’s ruling on the motion to suppress.

COROLLARY RULE: If at any point before the conclusion of final arguments at trial, the trial court should exercise its discretionary authority to reopen the suppression hearing, the reviewing court should also consider whatever additional evidence may be spread on the record bearing on the propriety of the trial court’s ultimate ruling on the motion to suppress.

The CCA affirmed the holding of the 10th Circuit Court of Appeals which affirmed the trial court’s judgment.

Judge Meyers dissented, and is of the opinion that the trial court erred by reopening the suppression hearing without the defendant’s consent.

Let the Record Reflect...

I cringe when I hear an attorney say "Let the record reflect."  Of course the record will reflect!  If you're saying something out loud in court and there is a court reporter present taking the transcripts, the record will reflect.  There is no need for the superfluous phrase.  But alas, through movies and TV dramas, the phrase has become a seemingly permanent part of our litigation lexicon.  Use it if you want, but you won't ever hear me say it.  I apologize for the rant.  That is not what this post is about.

Below are a couple of recent cases from the Texas Court of Criminal Appeals.

Newman v. State (on appeal from the 14th District Court of Appeals - Houston) - Appellant filed an unsworn motion in the trial court, challenging the eight-year delay from indictment to trial as a violation of his constitutional right to a speedy trial.  The trial court denied the motion and indicated that it did so after a hearing.  The appellate record, however, did not contain a reporter's record of this hearing.  Noting that the record was "sparse" and cautioning "practitioners regarding the importance of developing a record," the court of appeals, nonetheless, overturned the trial court's ruling and held that Appellant's right to a speedy trial had indeed been violated.  The CCA reversed the court of appeals, holding that Appellant has "failed to present a record demonstrating that the trial court's decision should be overturned."  The CCA noted that "an unsworn motion does not, by itself, present evidence upon which relief can be granted" and held that "the court of appeals would have erred to consider the factual assertions in Appellant's unsworn speedy-trial motion."  Simply put, the record did not reflect.

Ex Parte Chamberlain (on appeal from the 2nd District Court of Appeals - Fort Worth) - In this case, Appellant alleged that the lifetime sex-offender registration requirement violates his substantive due process rights because there is no mechanism to permit any future risk reassessment concerning the probability or likelihood of recidivism.  The lower court rejected the claim because under the Texas Code of Criminal Procedure Articles 62.401 through 62.408, there is a statutory mechanism that allows a person subject to lifetime registration requirement to seek early termination.  After the lower court's ruling but before the CCA's decision, the Council on Sex Offender Treatment (CSOT) published a new list regarding the classes of sex offenders which may apply for deregistration.  Accordingly, because the court of appeals did not consider this new list, the CCA remanded the case back to the court for another proceeding.  The CSOT's new list is available HERE.

Pre-Trial Motion to Quash Indictment is a Facial Challenge

When a defendant challenges the indictment at a pretrial hearing, the only inquiry may be into whether the indictment, on its face, met the pleading requirements.A trial court may not determine the sufficiency of evidence to support or defeat any of the elements of the charged crime alleged in the indictment at a pretrial hearing.

State v. Reyes, 8th District Court of Appeals (El Paso), reported 24 Feb 2010.