Texas Stamp


PD-0436-22 10/26/2022

“Does sworn, unchallenged testimony on a material issue have probative value?”

Appellant was convicted of unlawfully carrying a handgun, enhanced to a third-degree felony because it was on the premises of an establishment licensed to sell alcohol.  See Tex. Penal Code § 46.02(c).  The incident took place directly outside a bar’s front door in a parking lot.  The court of appeals affirmed, finding the evidence the parking lot was part of the bar’s premises sufficient.  The Court of Criminal Appeals (CCA) granted review but, after argument, vacated the lower court’s opinion and remanded for consideration of Curlee v. State, 620 S.W.3d 767 (Tex. Crim. App. 2021), which was decided in the interim.  In Curlee, a “drug free zone” enhancement case, the CCA discounted the testimony of an officer who testified that a church playground was “open to the public,” see Tex. Health & Safety Code § 481.134(a)(3), (c)(1), because the basis for the officer’s opinion was undisclosed.  It did not matter, the CCA held, whether his testimony was objected to.  The court of appeals in this case was instructed to consider how Curlee impacted its consideration of the testimony about the parking lot’s characterization.

On remand, the court of appeals found the evidence insufficient.  Although multiple witnesses said (without objection) that the parking lot belonged to the bar, none of them had any apparent reason to know that—none were owners, employees, etc.—or explained why they believed that to be true.  Quoting Curlee, the court concluded this testimony amounted to “factually unsupported inference[s] or presumption[s]” that could not support the enhancement.

The State uses this case to challenge Curlee.  It argues that depriving sworn testimony of probative value—especially without objection—conflicts with decades of sufficiency law.  The CCA had, prior to Curlee, consistently directed courts of appeals to consider all the evidence admitted at trial and held that deciding what testimony should be found credible usurps the jury’s function.  Even objected-to, inadmissible evidence is considered under the assumption that the State might have supplied admissible evidence had the correct ruling been made.  The remedy for improperly admitted evidence (if preserved and raised on appeal) is a new trial; acquittal would be a windfall.  Ironically, labeling unexplained testimony as “factually unsupported” is itself speculative.  Only a post-conviction proceeding can reveal whether the witnesses had a basis for their opinions.  Finally, Curlee creates an incentive for defense counsel to refrain from objecting and go for an acquittal on appeal rather than object or cross-examine witnesses, thereby providing the State an opportunity to better make its case.

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