Clarke v. State
Clarke v. State, 270 S.W.3d 573 (Tex. Crim. App. 2008), the Court of criminal appeals held that the appellant's argument in his motion for new trial--that the prosecutor had deliberately allowed false material to be included in the presentence investigation report (PSI)--was the same substantively as his argument on appeal; the appellant "added more whistles and bells on appeal, but the tune was the same."
In Clarke, the appellant entered an open plea of guilty to sexually assaulting his fourteen-year-old step-cousin. Id. at 575.
At the punishment hearing, the State proffered, and the trial court admitted, a PSI, in which Clarke's aunt said that "she had an intuition that perhaps the appellant's sister had a similar experience with her brother, but was afraid to relate the experience to anyone." Id
At the beginning of the hearing, when the trial judge asked if anyone had a problem with the PSI, Clarke's counsel said that Clarke had no problems with the PSI "except for the 'conjecture on behalf of the victim's mother.'" Id.
Clarke filed a motion for new trial, asserting that the PSI "contained totally unfounded allegations from the Complainant's mother . . . that Clarke had molested his own sister." Id. at 576.
He argued at the motion for new trial hearing that "based on the affidavit by the complainant's mother, the prosecutor was aware that the implication in the PSI was false and that she 'took no steps to alert the Court or defense counsel that this exculpatory evidence--that there was exculpatory evidence, namely the falsity of this extraneous offense.'" Id. at 577.
On appeal, Clarke raised the following issue: "The prosecutor deliberately deceived the trial court during the punishment phase by allowing evidence concerning an alleged extraneous offense known by the prosecutor to be false, to remain in the presentence report, in violation of the Fourteenth Amendment of the United States Constitution and Article 1, Section 19 of the Texas Constitution." Id. at 578.
The Fourteenth District court of appeals, with Justice Mirabal dissenting, held that Clarke did not preserve this argument for appeal because:
(1) he did not timely make a prosecutorial misconduct claim in his written motion for new trial or in any amendment to that motion, and (2) even if he had raised a prosecutorial misconduct claim at the hearing itself, he still waived any constitutional claim on appeal because he did not present any constitutional argument to the trial court at the hearing. Id.
The court of criminal appeals reversed, holding that Clarke had preserved his complaint, even though it was not set forth in his written motion for new trial, because he "argued at the new-trial hearing that the prosecutor was aware that the implication in the PSI was false and that the prosecutor had a duty to inform defense counsel and the trial court that the allegation was false."