categorical rule in Texas

2019Here, Mireles contends that a mandatory twenty-five-year statutory minimum sentence without the possibility of parole is a grossly disproportionate punishment when assessed against a class of offenders with no prior criminal history and who were not previously registered sex offenders, a class to which he belongs. 2 Thus, Mireles’s argument is “a categorical challenge to a 2 As part of the plea agreement, the State stipulated on the record that Mireles had no prior criminal history and was not previously a registered sex offender. -3- 04-19-00157-CR term-of-years sentence.” See Graham, 560 U.S

2011When faced with a categorical challenge to a term-of-years sentence, the reviewing court must first consider the “objective indicia of society’s standards, as expressed in legislative enactments and state practice.” Roper, 543 U.S. at 563 , 125 S.Ct. 1183 ; see also Graham, 130 S.Ct. at 2022-23 (applying Roper's categorical rules where “a threshold comparison between the severity of the penalty and the gravity of the crime does not advance the analysis”).

2026See Meadoux v. State, 325 S.W.3d 189, 193 (Tex. Crim.

2021“When faced with [] a categorical challenge, the judiciary, in determining whether the punishment at issue is grossly disproportionate to the offense, must consider: (1) whether there is a national consensus against imposing the punishment for the offense; (2) the moral culpability of the offenders at issue in light of their crimes and characteristics; (3) the severity of the punishment; and (4) whether the punishment serves legitimate penological goals.” Meadoux v. State, 325 S.W.3d 189, 194 (Tex. Crim.

2020See Clark, 135 S. Ct. at 2181 (declining “to adopt a categorical rule excluding” “statements to individuals who are not law enforcement officers” “from the Sixth Amendment’s reach”); Wall, 184 S.W.3d at 741–42 (rejecting “any per se or categorical approach” to determining whether excited utterances are testimonial hearsay); Davis, 169 S.W.3d at 667 (describing “the 13 grueling job of applying Crawford on a case-by-case basis” that “[c]ourts across the nation have been confronted with”).

2006In Davis v. State, 169 S.W.3d 660 (Tex.App.-Austin 2005, no pet. h.), the court of appeals surveyed the Texas decisions, acknowledged that a number of other courts had suggested that excited utterances could not be testimonial because their distinguishing character as spontaneous outbursts made under emotional distress, without deliberation or premeditation, bore little resemblance to Crawford’s conception of statements elicited through formal, structured, police interrogation, but rejected a categorical rule that evidence admissible as an excited utterance is "ipso facto nontestimonial hearsa

2009Some cases have suggested that crossing county lines establishes traveling, see Illingworth, 156 S.W.3d at 665 (citing Ballard v. State, 74 Tex.Crim. 110 , 167 S.W. 340, 340 (1914)), but this is not a categorical rule, see Perez v. State, 87 S.W.3d 648, 652-53 (Tex.App.-San Antonio 2002, no pet.).

2008App. 1914)), but this is not a categorical rule, see Perez v. State, 87 S.W.3d 648, 652-53 (Tex. App.—San Antonio 2002, no pet.), and if the trip between counties is “so short there is no real journey,” then one is not a traveler.

2006Rather, “[ejach case must be examined on its facts to determine if the evidence is testimonial and controlled by Crawford.” Id. 169 S.W.3d at 671 ; see also Scott v. State, 165 S.W.3d 27, 46-47 (Tex.App.-Austin 2005, pet. filed) (whether statement is testimonial does not turn on whether it qualifies as self-inculpatory within meaning of hearsay exception). 13 We then proceeded to identify a number of issues we considered the officer’s testimony to raise under Crawford and prior Texas decisions: Officers Cortez and Cañizales responded to a 911 call.

2005Rather, “[e]ach case must be examined on its facts to determine if the evidence is testimonial and controlled by Crawford.” Id. at *29; see also Scott v. State, 165 S.W.3d 27, 46-47 (Tex. App.—Austin 2005, pet. filed) (whether statement is 12 See Key v. State, No. 12-04-00030-CR, 2005 Tex. App. LEXIS 1573 , at *4-5 (Tex. App.—Tyler, Feb. 25, 2005, no pet.); see also Hammon v. State, 809 N.E.2d 945, 952-53 (Ind. Ct. App. 2004); Fowler v. State, 809 N.E.2d 960, 964 (Ind. Ct. App. 2004), transfer granted, 2004 Ind. LEXIS 1030 (Ind. Dec. 9, 2004). 21 testimonial does not turn on whether it qualifi

2015Yes, “some delay between the time of the arrest or accident and the time of the test is inevitable regardless of whether police officers are required to obtain a warrant[,]” and this reality undermines the argument for “a categorical exception to the warrant requirement because BAC evidence ‘is actively being destroyed with every minute that passes.’”36 And, of course, there might be “situation[s] in which the warrant process will not significantly increase the delay before the blood test is conducted.”37 But “exigent circumstances justifying a warrantless blood sample may arise in the regular

2015Yes, “some delay between the time of the arrest or accident and the time of the test is inevitable regardless of whether police officers are required to obtain a warrant[,]” and this reality undermines the argument for “a categorical exception to the warrant requirement because BAC evidence ‘is actively being destroyed with every minute that passes.’”36 And, of course, there might be “situation[s] in which the warrant process will not significantly increase the delay before the blood test is conducted.”37 But “exigent circumstances justifying a warrantless blood sample may arise in the regular

2025I The Fifth Circuit panel that certified this question initially held that the plaintiffs’ “sparse briefing” made the Section 6-a issue “a determination we need not reach in the instant case.” 98 F.4th 586 , 611–12 (5th Cir.), reh’g granted and opinion withdrawn, 115 F.4th 422 (5th Cir. 2024).

2025The plaintiffs’ opening brief in that court argued that Section 6-a “does not even allow the City to try to satisfy strict scrutiny; it is a categorical bar on what the City seeks to do.” Appellants’ Br. at 32, Cause No. 23-50746 (5th Cir. Nov. 8, 2023); see also id. at 3–4, 28–29, 47–51.

2016See United States v. Alvarez, 132 S.Ct. 2537, 2544 , 567 U.S. ___ (2012); United States v. Stevens, 559 U.S. 460, 469-70 (2010).

2015See Stevens, 559 U.S. 460 ; Alvarez, 132 S. Ct. 2537 .

2014Miller did not conclude that a life- without-parole sentence imposed on a juvenile is unconstitutional and therefore did not change in any way the “class of person that the law punishes.” On this issue, the Miller Court’s language could hardly be clearer: “we do not consider [petitioners’] alternative arguments that the Eighth Amendment requires a categorical bar on life without parole for juveniles”;18 “Although we do not foreclose a sentencer’s ability to make [a life-without- parole] judgment in homicide cases, we require it to take into account how children are different . . .”;19 and “Our

2014Miller did not conclude that a life- without-parole sentence imposed on a juvenile is unconstitutional and therefore did not change in any way the “class of person that the law punishes.” On this issue, the Miller Court’s language could hardly be clearer: “we do not consider [petitioners’] alternative arguments that the Eighth Amendment requires a categorical bar on life without parole for juveniles”;18 “Although we do not foreclose a sentencer’s ability to make [a life-without- parole] judgment in homicide cases, we require it to take into account how children are different . . .”;19 and “Our

2014Id. at 1367 ("The requirement that a new rule be made retroactive on collateral review by the Supreme Court ‘is satisfied only if th[e] [Supreme] Court has held that the new rule is retroactively applicable to cases on collateral review.' And the Supreme Court has not held that Miller is retroactively applicable to cases on collateral review.”) (quoting Tyler v. Cain, 533 U.S. 656, 662 , 121 S.Ct. 2478 , 150 L.Ed.2d 632 (2001)). .

2014And the Court declined to consider a categorical bar on life without parole for juveniles, or at least those 14 and younger.”) (quotation and alteration marks omitted). 32 Id. at 1367 (“The requirement that a new rule be made retroactive on collateral review by the Supreme Court ‘is satisfied only if th[e] [Supreme] Court has held that the new rule is retroactively applicable to cases on collateral review.’ And the Supreme Court has not held that Miller is retroactively applicable to cases on collateral review.”) (quoting Tyler v. Cain, 533 U.S. 656, 662 (2001)).

2013P. 44.2(a). 3 Burch v. State, No. 05-10-01389-CR, 2012 Tex. App. LEXIS 4814 (Tex. App. — Dallas, June 18, 2012). 4 See Pointer v. Texas, 380 U.S. 400, 403 (1965). 5 541 U.S. 36, 54 (2004). 6 Id., at 55 . 4 witness face to face, and … subjecting him to the ordeal of cross-examination.”7 The very real difficulties and costs involved in making witnesses available at trial cannot trump this categorical requirement.

2013P. 44.2(a). 3 Burch v. State, No. 05-10-01389-CR, 2012 Tex. App. LEXIS 4814 (Tex. App. — Dallas, June 18, 2012). 4 See Pointer v. Texas, 380 U.S. 400, 403 (1965). 5 541 U.S. 36, 54 (2004). 6 Id., at 55 . 4 witness face to face, and … subjecting him to the ordeal of cross-examination.”7 The very real difficulties and costs involved in making witnesses available at trial cannot trump this categorical requirement.

2013P. 44.2(a). 3 Burch v. State, No. 05-10-01389-CR, 2012 Tex. App. LEXIS 4814 (Tex. App.- Dallas, June 18, 2012). 4 See Pointer v. Texas, 380 U.S. 400,403 (1965). 5 541 U.S. 36, 54 (2004). 6 Id, at 55 . witness face to face, and ... subjecting him to the ordeal of cross-examination."7 The very real difficulties and costs involved in making witnesses available at trial cannot trump this categorical requirement.

2013P. 44.2(a). 3 Burch v. State, No. 05-10-01389-CR, 2012 Tex. App. LEXIS 4814 (Tex. App. — Dallas, June 18, 2012). 4 See Pointer v. Texas, 380 U.S. 400, 403 (1965). 5 541 U.S. 36, 54 (2004). 6 Id., at 55 . 4 witness face to face, and … subjecting him to the ordeal of cross-examination.”7 The very real difficulties and costs involved in making witnesses available at trial cannot trump this categorical requirement.

2011See Mendez , 138 S.W.3d at 341 ; Sanchez v. State , 120 S.W.3d 359, 366 (Tex. Crim.

2011See Mendez, 138 S.W.3d at 341 ; Sanchez v. State, 120 S.W.3d 359, 366 (Tex. Crim.

2011See Mendez , 138 S.W.3d at 341 ; Sanchez v. State , 120 S.W.3d 359, 366 (Tex. Crim.

2011See Mendez, 138 S.W.3d at 341 ; Sanchez v. State, 120 S.W.3d 359, 366 (Tex. Crim.

2010See, e.g., Commonwealth v. SS Zoe Colocotroni, 628 F.2d 652, 670 (1st.

2010See, e.g. , Commonwealth v. SS Zoe Colocotroni , 628 F.2d 652, 670 (1st.

2010See id . at 2021–22; see also Ex parte Chavez , 213 S.W.3d 320 , 324 n.20 (Tex. Crim.

2010See id. at 2021-22 ; see also Ex parte Chavez, 213 S.W.3d 320 , 324 n. 20 (Tex.Crim.App.2006) (“[A]part from the amorphous ‘gross-dis-proportionality’ standard ... the Eight Amendment ... imposes no apparent limitation on the discretion of the sentencing entity, be it judge or jury, including any requirement that punishment be informed by the particular circumstances, of the offense and/or the offender.”) (discussing Lockyer v. Andrade, 538 U.S. 63 , 123 S.Ct. 1166 , 155 L.Ed.2d 144 (2003), and Harmelin v. Michigan, 501 U.S. 957, 995, 1006 , 111 S.Ct. 2680 , . 115 L.Ed.2d 836 (1991) (Scalia, J

2008Sanchez v. State, 122 S.W.3d 347, 356 (Tex. App.—Texarkana 2003, pet. ref’d) (driving fifteen minutes between cities in different counties did not constitute traveling).

2008Sanchez v. State , 122 S.W.3d 347, 356 (Tex. App.--Texarkana 2003, pet. ref'd) (driving fifteen minutes between cities in different counties did not constitute traveling).

2005See Tex. Gov’t Code Ann. § 311.023 (West 2005) (court to consider laws on same or similar subjects when construing statutes); 21 We disapprove, however, Ms. Sheshunoff’s view that Miller v. Ludeman, 150 S.W.3d 592, 597 (Tex. App.—Austin 2004, pet. denied), stands for a categorical rule that spouses who hire separate counsel to negotiate a property division can never owe fiduciary duties to one another.

2005We disapprove, however, Ms. Sheshunoff's view that Miller v. Ludeman , 150 S.W.3d 592, 597 (Tex. App.--Austin 2004, pet. denied), stands for a categorical rule that spouses who hire separate counsel to negotiate a property division can never owe fiduciary duties to one another.

2004The Court then held that the application of United States v. Leon , 468 U.S. 897 (1984), supports “a categorical exception to the exclusionary rule for clerical errors of court employees.” Arizona v. Evans, supra at 16.

1996The categorical exception to the exclusionary rule in Evans is limited to “clerical errors of court employees.” Id. at -, 115 S.Ct. at 1194 .

2021According to Appellant, “the constitutional underpinnings of the categorical exemption for persons with intellectual disability are exactly the same as the categorical exemption for juveniles.”97 Therefore, in Appellant’s view, “the procedure for determining intellectual disability should be ‘no different from conducting a pretrial determination of whether the defendant was a juvenile at the time of the offense.’”98 Though we agree that the categorical exemption from the death penalty for juveniles developed from the categorical exemption for intellectually disabled individuals, we disagree th

2021According to Appellant, “the constitutional underpinnings of the categorical exemption for persons with intellectual disability are exactly the same as the categorical exemption for juveniles.”97 Therefore, in Appellant’s view, “the procedure for determining intellectual disability should be ‘no different from conducting a pretrial determination of whether the defendant was a juvenile at the time of the offense.’”98 Though we agree that the categorical exemption from the death penalty for juveniles developed from the categorical exemption for intellectually disabled individuals, we disagree th

2023See Sheshunoff v. Sheshunoff, 172 S.W.3d 686 , 701 n.21 (Tex. App.—Austin 2005, pet. denied) (acknowledging general rule that “[t]he fiduciary duty arising from the marriage relationship does not continue when a husband and wife each hire independent professional counsel to represent them in a contested divorce proceeding” but rejecting “a categorical rule that spouses who hire separate counsel to negotiate a property division can never owe fiduciary duties to one another”).

2010This Court has declined to adopt “a categorical rule that spouses who hire separate counsel to negotiate a property division can never owe fiduciary duties to one another.” Sheshunoff v. Sheshunoff, 172 S.W.3d 686 , 701 n.21 (Tex. App.—Austin 2005, pet. denied).

2016See United States v. Alvarez, 132 S.Ct. 2537, 2544 , 567 U.S. ___ (2012); United States v. Stevens, 559 U.S. 460, 469-70 (2010).

2015See Stevens, 559 U.S. 460 ; Alvarez, 132 S. Ct. 2537 .

2012It was in the context of this second step of the categorical analysis of a particular sentencing practice that the Graham Court observed that “[t]he judicial exercise of independent judgment requires consideration of the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question.” Id. at 2026 (citing Roper, 543 U.S. at 572 , 125 S.Ct. at 1196-97 ; Kennedy, 554 U.S. at 436-37 , 128 S.Ct. at 2659-60 ).

2012It was in the context of this second step of the categorical analysis of a particular sentencing practice that the Graham Court observed that “[t]he judicial exercise of independent judgment requires consideration of the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question.” Id. at 2026 (citing Roper, 543 U.S. at 572 , 125 S.Ct. at 1196-97 ; Kennedy, 554 U.S. at 436-37 , 128 S.Ct. at 2659-60 ).

2009Id. , 523 U.S. at 311 , 118 S. Ct. at 1266 (citing Perkins v. State , 902 S.W.2d 88, 94-95 (Tex. Crim.

2009Id., 523 U.S. at 311 , 118 S. Ct. at 1266 (citing Perkins v. State, 902 S.W.2d 88 , 94–95 (Tex. Crim.

2025See IT-Davy, 74 S.W.3d at 857 . 32 Trying to discern a rule of decision from IT-Davy and Catalina Development, some courts of appeals in the mid-2000s concluded that “courts are to evaluate the waiver-by-conduct exception on the facts and equity of each case.” Seureau v. ExxonMobil Corp., 274 S.W.3d 206, 220 (Tex. App.— Houston [14th Dist.] 2008, pet. denied).