Post-Trial Issues

AuthorMark G. Daniel/Robert K. Gill
Chapter 21
Post-Trial Issues
Table of Contents
§21:10 Reasonable Doubt
§21:20 Sufficiency of Evidence
§21:20.1 Legal Sufficiency
§21:20.2 Factual Sufficiency
§21:20.3 Evidence in Sufficiency Review
§21:20.4 Affirmative Link Analysis
§21:20.5 Sufficiency in Drug Cases
§21:20.6 Sufficiency in DWI Cases
§21:20.7 Sufficiency of Serious Bodily Injury Evidence
§21:20.8 Idem Sonans
§21:20.9 Variance
§21:20.9.1 No Fatal Variance
§21:20.9.2 Fatal Variance
§21:20.10 Sufficiency In Criminally Negligent Homicide Cases
§21:30 [Reserved]
§21:40 New Trials
§21:40.1 General Points
§21:40.2 Grounds for New Trial
§21:40.3 Filing the Motion
§21:40.4 Presenting the Motion
§21:40.5 Right to Hearing
§21:40.6 The Hearing
§21:50 Appeals
§21:50.1 Statutory Law
§21:50.2 Case Law
§21:51 Forms for Appeals
§21:60 State’s Appeals
§21:70 Habeas Corpus
§21:71 Jurisdiction
§21:72 Post-Conviction Relief
TCL’H 21-2
§21:72.1 Final Convictions (Non-Death Penalty)
§21:72.2 Community Supervision Cases
§21:72.3 Writs Based on Scientific Evidence
§21:72.3.1 Statutory Law
§21:72.3.2 Case Law
§21:73 Requisites of Petition
§21:74 Burden of Proof
§21:74.1 Grounds
§21:75 Procedure
§21:76 Procedure After Refusal of Writ
§21:77 Procedure After Granting of Writ and Refusal of Relief
§21:78 Time Credits
§21:78.1 Applicable Statutes
§21:80 Post-Conviction DNA Testing
§21:90 Correcting Judgments
§21:100 Court Costs and Fee Issues
§21:101 StatutoryLaw
§21:102 CaseLaw
21-3 P-TI §21:20
§21:10 Reasonable Doubt
Unless both sides of the lawsuit agree to submit
it, a charge on the definition of reasonable doubt is
no longer required under Geesa v. State, 820 S.W.2d
154 (Tex. Crim. App. 1991), and in fact, the better
practice is to not give the instruction. Paulson v.
State, 28 S.W.3d 570 (Tex. Crim. App. 2000).
§21:20 Sufficiency of Evidence
§21:20.1 LegalSufficiency
The proper standard of review for a court to utilize
in determining whether the evidence presented
is legally sufficient to support a conviction is:
whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier
of fact could have found the essential elements of
an offense beyond a reasonable doubt. Jackson v.
560 (1970).
Federal constitutional law measures evidentiary
sufficiency against the elements of the criminal
offense as defined by state law. Fuller v. State, 73
S.W.3d 250 (Tex. Crim. App. 2002).
The legal sufficiency of the evidence is measured
by the elements of the offense as defined by the
hypothetically correct jury charge for the case. A
hypothetically correct jury charge: accurately sets
out the law, is authorized by the indictment, does not
unnecessarily increase the state’s burden of proof or
unnecessarily restrict the state’s theories of liability,
and adequately describes the particular offense for
which the defendant was tried. Malik v. State, 953
S.W.2d 239 (Tex. Crim. App. 1997); Blanco v. State,
962 S.W.2d 46 (Tex. Crim. App. 1998).
The essential elements of the offense are defined
by the hypothetically correct jury charge for the
case. A hypothetically correct jury charge does
four things: (1) accurately sets out the law; (2)
is authorized by the indictment; (3) does not
unnecessarily increase the State’s burden of proof or
unnecessarily restrict the State’s theories of liability;
and (4) adequately describes the particular offense
for which the defendant was tried. A hypothetically
correct jury charge does not have to include all of
the charging instrument’s allegations. Ramos v.
State, 407 S.W.3d 265, 269 (Tex. Crim. App. 2013).
A materiality inquiry should be made in all cases
that involve a sufficiency of the evidence claim
based upon a variance between the indictment and
the proof, and only a material variance will render
the evidence insufficient. Gollihar v. State, 46
S.W.3d 243 (Tex. Crim. App. 2001).
In conducting a sufficiency analysis, courts
should disregard allegations in indictments that
are not a statutory element or an integral part of an
essential element of the offense charged. Fuller (a
slight variance between the indictment and proof of
the complainant’s name is not a material variance).
After the 1985 legislative abolition of the
fundamental error doctrine in indictment law, the
materiality of defects in indictments and jury charges
has been analyzed by looking to the essential
elements of the particular criminal offense the
gravamen of that offense—and the hypothetically
correct jury charge under the specific indictment or
information. In turn, the sufficiency of the evidence
has been measured in the same manner. Byrd v.
State, 336 S.W.3d 242 (Tex. Crim. App. 2011).
In a theft case, a variance between the allegation
of the injured party in the indictment (“Mike
Morales”) and proof which showed another injured
party (“Wal-Mart”) is a material variance because
the allegation of the injured party is an essential
element of the charge. It is the identity of the person,
not his formal name, that controls and guides the
sufficiency of the evidence review. Byrd.
Proof of a higher degree of culpability than that
charged constitutes proof of the lesser degree of
culpability charged. Wasylina v. State, 275 S.W.3d
908 (Tex. Crim. App. 2009) (proof of recklessness
sufficient to prove criminal negligence).
Where the State unnecessarily pleads a statutory
definition that narrows the manner and means in
which an offense may be committed, that definition
is the law as authorized by the indictment and thus
the additional allegation must be proved beyond
a reasonable doubt. Geick v. State, 349 S.W.3d
542, 548 (Tex. Crim. App. 2011) (where the State
unnecessarily pled that the theft was by deception
but provided no proof of deception).
After a court of appeals has found the evidence
insufficient to support an appellant’s conviction
for a greater-inclusive offense, in deciding whether
to reform the judgment to reflect a conviction for
a lesser-included offense, that court must answer
two questions: 1) in the course of convicting the
appellant of the greater offense, must the jury have
necessarily found every element necessary to convict
the appellant for the lesser-included offense; and 2)
conducting an evidentiary sufficiency analysis as
though the appellant had been convicted of the

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