Kyle Therrian

Kyle’s practice has always been criminal defense. In McKinney, where he has practiced for the past 10 years, he represents individuals in all aspects of criminal accusations, including dozens of appeals before the various Courts of Appeal and Court of Criminal Appeals. He enjoys being a resource to his colleagues and, as he describes it, “nerding out on the law.” He is an active member and leader in TCDLA. In addition to his new role as Significant Decisions Report Editor, Kyle serves as Vice Chair to Texas Criminal Defense Lawyers Education Institute, Vice Chair on the COVID-19 Taskforce, is a long-time member of the Amicus committee, and a regular lecturer as part of the Criminal Defense Lawyers Project.

October 2020 SDR – Voice for the Defense Vol. 49, No. 8

Voice for the Defense Volume 49, No. 8 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

Please do not rely solely on the summaries set forth below. The reader is advised to read the full text of each opinion in addition to the brief synopses provided.

TCDLA thanks the Court of Criminal Appeals for graciously administering a grant which underwrites the majority of the costs of our Significant Decisions Report. We appreciate the Court’s continued support of our efforts to keep lawyers informed of significant appellate court decisions from Texas, the United States Court of Appeals for the Fifth Circuit, and the Supreme Court of the United States. However, the decision as to which cases are reported lies exclusively with our Significant Decisions editor. Likewise, any and all editorial comments are a reflection of the editor’s view of the case, and his alone.

Supreme Court of the United States

The Supreme Court of the United States did not hand down any published criminal cases since the last Significant Decisions Report. The court will meet at the end of September to determine the granting of cert in cases for the 2020-21 term.

Fifth Circuit

United States v. Gallegos-Espinal, No. 19-20427 (5th Cir. Aug. 17, 2020)

Issue. Does a cell phone data extraction and analysis exceed the scope of consent to search when: (1) the consent was given only to obtain custody of children of a recently arrested person, (2) the scope was stated as “a complete search of the phone” and taking “any letters, papers, materials, or other property they may desire to examine,” (3) the extraction took place outside the defendant’s presence and without his knowledge, (4) the defendant ultimate would not be taking custody of the children, and (5) the analysis of data occurred three days after extraction?

Facts. A woman was arrested in an alien-smuggling investigation and requested her children be left in custody of the defendant, her adult son, who was a secondary target of the investigation. Agents seized on this opportunity to locate evidence pertaining to defendant’s mother. Agents informed defendant that it would be necessary to search his phones before handing over custody. The written consent permitted agents to take letters, papers materials, or other property they desire to examine. Agents used software to conduct an extraction. Three days later, agents find child pornography. The District Court granted suppression on the basis that the review of extracted data occurred well after defendant’s consent and because the defendant was no longer taking custody of his siblings.

Holding. Under the standard of “objective reasonableness” for determining the scope of consent, the terms of the written consent were broad. A typical reasonable owner of a cell phone would know the extensive personal information contained therein and the use of the term “complete” means everything.

Dissenting (Graves, J.). “Cell phones differ in both a quantitative and qualitative sense from other objects that might be kept on an arrestee’s person.” Riley v. California, 573 U.S. 373, 393 (2014). Sophisticated use of technology to extract exact duplicate of all data on the phone for later review was not envisioned by the agreement to search. Conducting the extraction secretly did not allow for the defendant clarify the scope.

Comment. The scope was broadly stated in outdated terms for the concept of data contained on a phone. Consent shouldn’t be sneakily obtained, but that’s how it appears to have been obtained in this case.

1st District Houston

Ex parte Edwards, No. 01-19-00100-CR (Tex. App. Houston [1st Dist.], Aug. 4, 2020)

Issue. Can the State satisfy its evidentiary burden under Article 12.01(1)(C) (elimination of the statute of limitations in a sexual assault cases) by showing that biological material was collected, sent for analysis, and 10 years later investigators took a buccal swab from the defendant?

Facts. To eliminate the statute of limitations in a sexual assault case, the State’s Article 12.01(1)(C) burden requires a showing that: (1) biological matter was collected, (2) it was tested,  and (3) testing results show the matter did not match the victim or any other person whose identity was readily ascertained. Tex. Code Crim. Proc. art. 12.01(1)(C). At the hearing on applicant’s writ of habeas corpus the parties stipulated to an offense report detailing an investigation beginning with the collection of biological material in 2003, a request for CODIS analysis, and an ultimate buccal swab of applicant in 2017. 

Holding. The implications arising from a buccal swab conducted more than 10 years after biological material was collected and sent for analysis neither satisfies the State’s burden of showing that a test was conducted on biological material, nor the State’s burden of showing that the analysis failed to produce a match to the victim or a readily ascertained person.

Comment. This is nothing ground-breaking—mostly a lesson in living by your stipulations and a good refresher on Article 12.01(1)(C).

State v. Peterson, No. 01-19-00137-CR (Tex. App. Houston [1st Dist.], Aug 25, 2020)

Issue. Does the failure to allege manner and means in a compelling prostitution case violate the due process requirement of adequately informing the defendant of the charge? Does it subject the defendant to double jeopardy?

Facts. The State tracked the language of the Statute: “did then and there unlawfully and knowingly cause by any means, K.O., a person younger than eighteen years of age, to commit prostitution.” The defendant argued that conduct constituting “any means” ranges from neglect to exploitation, and that an acquittal would ultimately attach to an indictment of unknown conduct permitting re-prosecution for the same transaction. The State pointed to subsequent briefing and discovery which narrowed the scope of the prosecution, and to the fact that the statute literally makes manner and means irrelevant.

Holding. The indictment, together with pretrial filings, provided adequate notice of the State’s theory of criminal liability so that the defendant could prepare a defense. A claim of double jeopardy without evidence of a subsequent prosecution initiated is premature.

Comment. The State does not have to prove means to obtain a conviction here. But, in a case like this the State probably must provide more information somewhere. Notice by discovery or other means is a slippery slope toward making the due process requirement of pleading a perfunctory exercise.

3rd District Austin

Ruffins v. State, No. 03-18-00540-CR (Tex. Crim. App.—Austin, Aug. 14, 2020)

Issue. Does egregious jury charge harm result from an accomplice witness instruction creating a presumption that corroboration was not required unless it was proven beyond a reasonable doubt that the witness was an accomplice.

Facts. In an aggravated robbery prosecution, the evidence presented at trial consisted of testimony from an accomplice witness, testimony from a witness who was arguably an accomplice, some arguably corroborating evidence, and an alibi witness. The jury was instructed that corroborating evidence was required only upon a finding beyond a reasonable doubt that a witness was in fact an accomplice to the commission of the offense.

Holding. The legislature has codified a predetermination that accomplice testimony alone does not satisfy a standard of proof beyond reasonable doubt. Tex. Code Crim. Proc. art. 38.14. The Article 38.14 jury instruction in this case was inverted. It should have required corroborating evidence unless the State proved beyond a reasonable doubt that the witness was not an accomplice. Because the presentation and argument of facts focused so heavily on accomplice witness testimony, the error rose to the level of egregious harm applicable to unobjected-to jury charge error.

Concurring (Baker, J.). Justice Baker would also reverse based on the lack of any requirement that the jury believe the testimony of accomplice witnesses. 

Dissenting (Goodwin, J.). Justice Goodwin would interpret trial counsel’s statements during the charge conference as invited error and disagreed with most points of analysis in the majority opinion.

Comment. A significant secondary rule of law in this case is that some corroborating evidence in the record does not cure the unobjected-to egregious jury charge harm. The Court pointed to several districts which hold this to be true – even one which would require countervailing overwhelming corroborating evidence.

4th District San Antonio

Ex parte Metzger, No. 04-19-00438-CR (Tex. App.—San Antonio, Aug 26, 2020)

Issue. Do the 2015 amended provisions of the invasive visual recording statute still violate the First Amendment as their predecessors did? The provisions at issue from Section 21.15 of the Penal Code read:

(b) A person commits an offense if, without the other person’s consent and with intent to invade the privacy of the other person, the person:

(1) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of an intimate area of another person if the other person has a reasonable expectation that the intimate area is not subject to public view;

(2) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another in a bathroom or changing room;

Facts. The defendant challenged the statute by writs of habeas corpus and motions to quash. He challenged the provisions as facially overbroad in violation of the First Amendment.

Holding. Section 21.15 is a content-based restriction because it targets speech based on its communicative content (sexually-related nature and subject matter of images). As such, the restrictions are subject to strict-scrutiny (narrowly tailored to serve compelling state interests). And, in such circumstances, the statute is overbroad only when if it continues to reach far more protected speech than the State has a compelling interest restricting. Here, the State has a compelling interest in protecting personal privacy and security in the seclusion of a home and in places where a person has a legitimate right to expect to be free from visual intrusion. These interests are invaded by unconsented visual images in changing rooms, bathrooms, by taking upskirt or down-blouse photographs, by sneaking video equipment into a person’s home, etc. The statute narrowly addresses the problem by restricting only expressive activity which invades bodily integrity and sexual privacy, which intrudes into the seclusion of a home, and which surreptitiously photographs or transmits through cracks in curtains, holes in walls, or from the ground looking up a person’s skirt. By requiring an intent to invade privacy, the statute is limited to only intolerable invasions. It is no broader than necessary to prevent substantial harms.

Comment. No party was spared from the thorough analysis of this opinion. The Court also rejected the State’s contention that “speech intended to invade substantial privacy rights should be categorically unprotected by the First Amendment.” The same result was reached in a similar challenge this month in Ex parte Ellis, No. 10-17-0047-CR (Tex. App.—Waco, Aug. 31, 2020).

5th District Dallas

Thedford v. State, No. 05-18-00884-CR (Tex. App.—Dallas, Aug. 28, 2020)(not designated for publication).

Issue. When grogginess, the mindless performance of a routine, and taking a prescribed medication all culminate in the inadvertent leaving of a child in the car, does it rise to the level of egregiousness required for negligent homicide?

Facts. Defendant, a teacher home for summer, was responsible for getting his children to daycare and preschool. After dropping his two older children off, he returned home and accidentally left his six-month-old in the back seat of the car, then he went inside, and fell asleep for a few hours. The child died of hyperthermia. Defendant misled emergency responders by telling them he had placed the child in a bassinet beside his bed while he slept. He also ultimately admitted to trying to cool the child down in the refrigerator (with door open) and taking a prescribed Seroquel the night before. At trial, the defendant presented a memory expert to show how such a tragic oversight could occur to someone of normal caution. The defendant was convicted of negligent homicide and acquitted of tampering with evidence.

Holding. Criminal negligence is not simply the criminalization of ordinary civil negligence—the required level of carelessness is significantly higher. The conduct must be egregious and with serious blameworthiness. The defendant’s failure to perceive the risk must be a gross deviation from reasonable care. Here, the routine of returning home still with a child in his vehicle after morning daycare drop-off was a new one. Absent of any significant and ignored warning signs, his conduct failed to rise above inadvertence and non-criminal negligence.

Dissent (Evans, J.). Would not impose a higher standard of serious blameworthiness nor a requirement that a defendant disregard significant warning signs. Mercy should be given in the form of probation, not acquittal.

Comment. Both the majority and the dissent seem to acknowledge that this was a terrible and tragic accident. If criminal laws are intended to conform behavior, then the majority opinion is sound. If criminal laws are intended to punish results, then so is the dissent. There have been several reverse and render opinions in negligent homicide cases in the past few years. 

6th District Texarkana

Sharpe v. State, No. 06-20-00019-CR (Tex. App—Texarkana, Aug 5, 2020)

Issue. Can an appellate court reform a probation order erroneously requiring repayment of court-appointed attorney; is the issue waived by non-objection?

Facts. On a jury verdict the trial court ordered the sentence suspended and ordered the defendant to reimburse the county for the expense of his court-appointed attorney. The defendant did not object at the time of the trial court’s order.

Holding. Appellate courts have authority to reform a probation order requiring repayment of court-appointed attorney.

Comment. The Texarkana Court indicates this would not be true when court-appointed attorney costs are assessed outside the contractual relationship of probation. When assessed merely as part of the judgment, the defendant must object at the time judgment is imposed. See Wiley v. State, 410 S.W.3d 313 (Tex. Crim. App. 2013).

7th District Amarillo

Estrada v. State, No. 07-17-00245 (Tex. App.—Amarillo, Aug 26, 2020)

Issue. Where possession with intent to deliver is an invalid predicate offense to engaging in organized criminal activity (“EOCA”), can the judgment be reformed? If so, to what?

Facts. The state’s evidence was limited to admissions by the defendant and co-conspirators that they were involved in the distribution of methamphetamine. Only one co-conspirator was discovered in possession of methamphetamine during a traffic stop. The defendant was convicted of EOCA with the predicate of offense of possession with intent to deliver – an invalid predicate. This was the second instance of the 7th Court considering this case. The State filed PDR, and the Court of Criminal Appeals remanded with instructions to consider the possibility of reformation.

Holding. Criminal conspiracy to commit possession of controlled substance with intent to deliver is a lesser included offense of EOCA with the same predicate offense. The judgment can be reformed accordingly on appeal.

Comment. Conspiracy is probably a correct offense for prosecution. It is unclear from the Court’s opinion whether the jury considered and acquitted the defendant for the actual act of possessing with intent to deliver or why the predicate itself is not the appropriate crime for prosecution. Under the strict analysis of McKithan v. State (holding offensive contact assault is not a lesser included offense of bodily injury assault), this lesser included analysis may present issues. EOCA requires collaboration by three or more people. Criminal conspiracy requires an overt act by two or more people. Arguably, criminal conspiracy requires the State to prove something more than it would have to in an EOCA prosecution.

8th District El Paso

In re State of Texas, No. 08-19-00151-CR (Tex. App.—El Paso, Aug. 31, 2020)

Issue. Under Article 39.14, Code of Criminal Procedure, can a trial court compel discovery of (1) prior instances of expert testimony, (2) prior transcripts of expert testimony, (3) materials relied on by experts (“gang files”), and (4) disclosure of the substance of proposed testimony which varies from written report?

Facts. This case is a prosecution for engaging in organized criminal activity arising from alleged activities of the Bandidos Outlaw Motorcycle Gang and Traviezos Motorcycle Club. The Defendant anticipated the State’s presentation of expert testimony regarding motorcycle gangs. The trial court granted some, but not all, of defendant’s discovery requests. The State resisted disclosure of all items listed above and sought mandamus relief.

Holding. The State did not meet the mandamus burden (ministerial act + no other adequate remedy). Much of the information sought by the defendant falls expressly under Article 39.14. Article 67 (pertaining to street gang database) also contemplates disclosure under Article 39.14. Facts and data underlying the expert’s opinion are as material as the opinion itself.

Comment. The 6th Court of Appeals, in a case pre-dating the Michael Morton Act, had found that Article 39.14 or Texas Rules of Evidence 104, 702, 703, or 705 of the Code of Criminal Procedure does not require disclosure of expert opinions or the bases for those opinions. The Court was unwilling to surgically address aspects of this case, specifically with regard to the potential overbreadth of the order and the possibility it could require the State to create new documents (an act not contemplated by Article 39.14). Instead the Court cautioned the trial court with regard to the State’s complaint.

10th District Waco

In re Keeling, No. 10-20-00199-CR (Tex. App.—Waco, Aug. 21, 2020)

Issue. Does the trial court have a ministerial duty to consider and rule upon a pro se request for a free record?

Facts. TDCJ inmate wants a free record for habeas purposes. He filed a motion and purportedly sent a certified letter requesting a ruling.

Holding. Yes. The trial court has a duty to rule upon a pro se request for free record.

Ragan v. State, No. 10-20-00199-CR (Tex. App.—Waco, Aug. 21, 2020)

Issue. When a defendant voluntarily waives jury trial, must the trial court ask verbatim whether the defendant’s decision is made knowingly and intelligently?

Facts. During voir dire, the defendant passed a note to his counsel that he wanted to waive a jury trial and proceed with a trial before the court. Counsel presented his client’s wish to the court. Counsel explained on the record the defendant’s right to a jury trial and the role the judge would play if the trial proceeded without a jury. The trial court inquired, and the defendant confirmed his decision to proceed was made voluntarily and with advice of counsel. Defendant signed a jury trial waiver. During the colloquy the trial court did not specifically inquire whether his decision was also intelligent and knowing.

Holding. The trial court must not ask verbatim whether the defendant’s decision is made knowingly and intelligently where the defendant admitted his waiver was voluntary, the procedure complied with Article 1.13 of the Code of Criminal Procedure, and caselaw indicates compliance with 1.13 shows the waiver was intelligently made as well.

Comment. Federal courts expressing guarantees of the federal constitution probably require more, including: an assessment of the defendant’s ability to make an intelligent decision, the awareness of risks and benefits of foregoing a jury trial, and some knowledge of the right to a jury trial.

Reed v. State, No. 10-19-00363-CR (Tex. App.—Waco, Aug. 26, 2020)

Issue. Must a trial court limit a lesser-included offense instruction in the same manner the greater-included offense is limited—by specific manner and means? Does the failure to do so constitute egregious jury charge harm?

Facts. A college student becomes highly intoxicated at a bar, returns to her condo, awakens with the defendant on top of her and no pants on. She believed she was raped. Defendant was charged under a theory of sexual assault by penetrating the victim’s sexual organ with his sexual organ. Some of the witnesses advanced a theory that the defendant used his sexual organ for penetration while others advanced a theory that he used his mouth. The jury convicted of a lesser-included offense of attempted sexual assault.

Holding. The State is bound to prove the manner of penetration it alleges. Here, it alleged penetration of sexual organ using a sexual organ. The jury charge permitted conviction on the lesser included offense of attempt, but under any form of penetration in the law. This improperly broadened the indictment by adding manner and means not plead. The error constituted egregious harm because it affected the very basis of the case by allowing jurors to convict the defendant on the belief that he penetrated the victim by means other than that alleged in the indictment. 

Comment. Surely, had the parties caught this error, the trial court would have corrected it. This is a rare case of not objecting working to the favor of the defendant.

11th District Eastland

Williams v. State, No. 11-18-00171-CR (Tex. App.—Eastland, Aug. 13, 2020)

Issue. When a jury returns an ambiguous verdict resulting from the trial court’s erroneous crafting of the jury verdict form must the trial court grant a motion for mistrial?

Facts. The defendant was charged with two counts of injury to child by omission. The jury was instructed to complete “Verdict Form C” if they find the defendant guilty as charged in Count II. That form erroneously stated a conviction for a lesser included offense. This was discovered by the trial court after the jury read its verdict. While the parties considered remedies outside the presence of the jury, they received a jury note indicating intent to convict the defendant on both counts as charged. Defendant requested the jury polled and then requested a mistrial. The trial court denied the mistrial, prepared proper verdict forms, and sent the jury back to deliberate. The jury returned verdicts on the two charged offenses, and the trial court confirmed the jury’s verdict by a poll.

Holding. “A mistrial is a device used to halt trial proceedings when an error is so prejudicial that expenditure of further time and expense would be wasteful and futile.” It is the duty of the trial court to reject insufficient verdicts and either correct with the jury’s consent or send the jury out to reconsider. The trial court did not err in refusing a mistrial and sending the jury back to correct the error.

14th District Houston

State v. Baldwin, No. 14-19-00154-CR (Tex. App. –Houston, Aug. 6, 2020)

Issue. By discussing generally how bad guys use phones, did a search warrant allege sufficient facts linking a cell phone found in a suspect’s car to the commission of a capital murder by co-conspirators?

Facts. Two masked gunmen killed a homeowner during the course of a robbery. Investigators acquire suspect description, a vehicle, a license plate, and the identity of the most recent vehicle purchaser. As a result, the defendant was arrested during a traffic stop four days later, and his vehicle was impounded. Officers apply for and obtain a search warrant for a cell phone found in the vehicle. The trial court grants a motion to suppress. The warrant affidavit at issue did not contain any particularized facts that directly connected the cellphone to the capital murder, rather, it contained boilerplate recitations about the abstract use of cellphones, training, and experience.

Holding. Despite the lack of direct evidence linking cell phone usage to the alleged crime, the common usage of cellphones among co-conspirators gives rise to a legitimate assumption that evidence of the crime would be found on the cell phone linked to one of the co-conspirators.

Dissent (Burliot, J.). Vague boilerplate accusations that people generally use cell phones when they commit crimes is not a formula for probable cause. Cell phones are unique under Fourth Amendment analysis, they contain the “most intimate details of a person’s individual life.” State v. Granville, 423 S.W.3d 399, 408 (Tex. Crim. App. 2014).

Comment. It is hard to imagine what, if any, circumstances a cell phone would not be subject to search under this rationale. A distinguishing feature of this case is the existence of co-conspirators, however. This elevates the assumption of cell phone coordination somewhat. Appellate litigation appears ongoing in this matter as of the date of this summary.

In re Pete, No. 14-20-00456-CR (Tex. App.—Houston [14th Dist.], Aug. 13, 2020)

Issue. Does the trial court have a ministerial duty to reduce oral rulings to writing?

Facts. A pro se defendant obtained oral rulings on discovery motions but refused to sign written orders reflecting its oral rulings.

Holding. Yes, rulings must be written if requested.

Stredic v. State, No. 14-18-00162-CR (Tex. App.—Houston [14th Dist.], Aug. 13, 2020)

Issue. Does Article 36.28 of the Code of Criminal Procedure allow for a written transcript of disputed testimony to be provided to the jury during deliberations?

Facts. In a murder prosecution, the defendant’s theory was that he was only guilty of manslaughter or negligent homicide. The jury requested a transcript of the defendant’s testimony which the State presented as inconsistent with his video statement. The trial court provided the jury with four pages of the defendant’s testimony over the defendant’s objection.

Holding. Article 36.28 only permits the oral readback of the court’s reporter’s notes. It was a clear abuse of discretion to supply the jury with transcription of testimony over a defendant’s objection. This error affected the defendant’s substantial rights. A trial court furnishing the jury with testimony in the form of an exhibit amounts to an impermissible comment on that testimony’s importance.

Concurring (Zimmerer, J.). Writes separately to stress the harmful nature of the error.

Dissenting (Wise, J.). Writes in dissent and would find error but no harm.

Comment. A long line of cases hold that reading and not supplying testimony strikes a balance between judicial comment on evidence and the jury’s need to resolve conflict. Judicial comments on the weight of the evidence are more harmful than those which merely affect a defendant’s substantial rights; they rise to the level of fundamental error, reviewable even without objection. Instead of providing the jury a single oral readback, it provided them with an exhibit available to be passed among the jury and to be read, considered, and scrutinized without restraint.

Fury v. State, No. 14-18-00935-CR (Tex. App.—Houston [14th Dist.], Aug. 25, 2020)

Issue. Was it improper for the trial court to permit mid-trial abandonment of language from an assault on public servant indictment which incorrectly described the reason a police officer was escorting a defendant through the jail when the assault occurred?

Facts. The indictment described a police officer as transporting the defendant-inmate in the jail “to be magistrate[d].” The testimony showed that the alleged assault occurred after the defendant had been magistrated. During a break in the State’s case-in-chief, the State moved to abandon the surplus language from the indictment: “to be magistrate[d].” The defendant objected and argued on appeal that the alteration constituted an amendment and not a mere abandonment.

Holding. While Article 28.10 of the Code of Criminal Procedure prohibits the State from amending an indictment during trial over the objection of the Defendant, an abandonment of surplusage is not an amendment. In some circumstances extra language which describes a necessary person, place or thing, with particularity is substantive and may not be abandoned, but here the reason why the officer was escorting the defendant was irrelevant.

Comment. Is it? The indictment after alteration described the officer’s performance of a duty as “escorting the defendant at the La Marque Jail.” Defendant testified at trial that jailers were physically assaulting him for attempting to raise alarm with the magistrate over jail conditions, the defense theory follows that not all “escorting” constitutes performance of an official duty.

Stats Show Racial Inequities for Organized Retail Theft Arrests Statewide

Let’s say I wanted to steal an Xbox from Fry’s (or any other retail store). Maybe it’s for a thrill, a dare, voices in my head, or maybe I just want to eat Cheetos all day and play video games on my sofa. Whatever the reason, it is unimportant.

I have committed theft—this is obvious. But, were you aware I also committed Organized Retail Theft (“ORT”)? TEX. PEN. C. 31.16(b) provides:

A person commits an offense if the person intentionally conducts, promotes, or facilitates an activity in which the person receives, possesses, conceals, stores, barters, sells or disposal of . . . (1) stolen retail merchandise.

Arrests for ORT under these circumstances aren’t theoretical, either. Dr. Michael Braun is a statistics professor from SMU’s Cox School of Business. He recently completed a comprehensive study published in the Journal of Empirical Legal Studies (JELS) which found not only were there thousands and thousands of arrests made for organized retail theft where the amount stolen was consistent with ordinary shoplifting—but also racial minorities are bearing a disproportional share of the arrests.

Dr. Braun studied over 110,000 organized retail theft arrests and ordinary thefts through open records from police agencies around the state. He found an African American is twice as likely as a white person to be arrested for ORT. His research found that African-American females are 160% as likely as a white person to be arrested for ORT. At least 30 police agencies showed racial disparities in their arrests based on Dr. Braun’s statistics and research.

There were unsuccessful attempts made this past session in the Texas House and Senate to make the Penal Code consistent with other states’ treatment of Organized Retail Theft. State Representative Jessica Gonzalez (D–Dallas) and State Senator Royce West (D–Dallas) filed bills in the House and Senate to amend the definition of ORT. However, Lieutenant Governor Patrick did not allow Senator West’s bill to reach the Senate Floor, thereby effectively killing it for this session. The proposed fix would install a $2,500 threshold to ORT amounts and would also require the stolen property to be possessed with the intent for the property to be re-distributed.

The Court of Criminal Appeals has weighed in on the issue, too, holding ordinary shoplifting, in and of itself, cannot be organized retail theft even with the bizarre language under 31.16(b). See Lang v. State, 561 S.W.3d 174 (Tex. Crim. App. 11/22/2018). This opinion expounds the need for the statute to be fixed.

Dr. Braun’s full article can be read at the following link:

Shifting Burdens of Proof in a Motion to Suppress

The allocation of burdens in a motion to suppress hearing is a “Choose Your Own Adventure.” Unlike in trial, where we simply add up proof in a linear fashion, a motion to suppress in Texas courts has burdens which are raised, lowered, and/or shifted back and forth based upon small and often trivial details. By decoding the riddle of procedure, you can make sure your client’s motion is decided on the facts and prevent the State from using a procedural escape hatch.

This article discusses the shifting burdens of proof under three different categories of evidence suppression: (1) Constitutional Fourth Amendment motions to suppress; (2) statutory motions to suppress; and (3) motions to suppress purported scientific evidence under Kelly and Daubert.

Burden of Proof in a Constitutional Motion to Suppress

Other than of the presumption of innocence, there are few presumptions in criminal law more powerful than the presumption of Fourth Amendment unreasonableness that attaches to warrantless searches and seizures. See Missouri v. McNeely, 569 U.S. ___, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013); Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Katz v. United Sates, 389 US. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); United States v. Guerrero-Barajas, 240 F.3d 428 (5th Cir. 2001). This presumption, alone, is always sufficient grounds for suppression when an officer is unable to justify his actions through a showing of probable cause or reasonable suspicion. However, unlike the presumption of innocence, this presumption is not automatically afforded to a criminal defendant in Texas.

In 1970, in the case of Mattei v. State, the Court of Criminal Appeals determined there also exists a presumption of proper police conduct in investigating crime and held that defendant-movants should bear at least some burden in a motion to suppress. Mattei v. State, 455 S.W.2d 761 (Tex. Crim. App. 1970) This conclusion was attributed to two opinions issued by the Fifth Circuit in the wake of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and the newly modified federal exclusionary rule. Mattei, supra, 455 S.W.2d at 765 (citing Rogers v. United States, 330 F.2d 535 (5th Cir. 1964); United States v. Thompson, 421 F.2d 373 (5th Cir. 1970)). Not surprisingly, the authority cited in Mattei fails to make any mention of the at-that-time-recent notion that searches and seizures without a warrant are presumptively unconstitutional. Instead of abandoning the old ways for the new, the Mattei court chose a middle road and allowed both the presumption of unreasonableness in warrantless police conduct and the presumption of proper police conduct to curiously exist side by side.

Summarizing what is still the current status of the law in this area, the Court of Criminal Appeals would later demonstrate that they did indeed intend for both of these presumptions to exist together in harmony. The Court explained:

When a defendant seeks to suppress evidence on the basis of a Fourth Amendment violation, this Court has placed the burden of proof initially upon the defendant. As the movant in a motion to suppress evidence, a defendant must produce evidence that defeats the presumption of proper police conduct and therefore shifts the burden of proof to the State. A defendant meets his initial burden of proof by establishing that a search or seizure occurred without a warrant. Once a defendant has established 1) that a search or seizure occurred and 2) that no warrant was obtained, the burden of proof shifts to the State. If the State produces evidence of a warrant, the burden of proof is shifted back to the defendant to show the invalidity of the warrant. If the state is unable to produce evidence of a warrant, then it must prove the reasonableness of the search or seizure [citations omitted, emphasis added].

Russell v. State, 717 S.W.2d 7, 9–10 (Tex. Crim. App. 1986).

Harmonizing these two presumptions in the search and seizure context results in a peculiar proposition of law: a presumption that police always possess a warrant. Despite being contrary to reality in the vast majority of cases at the time of Russell and in the vast majority of cases since, the Court of Criminal Appeals would reaffirm Russell in 2005 as the proper allocation of burdens in a motion to suppress. Ford v. State, 158 S.W.3d 488 (Tex. Crim. App., 2005).

Burden of Proof in a Statutory Motion to Suppress under Tex. Code Crim. Proc. §38.23

A motion to suppress based on a purely statutory violation (e.g., DWI suspect induced to consent to breath test by extra-statutory consequences of refusal) is a completely different adventure. The Texas version of the exclusionary rule, sometimes referred to as a 38.23 motion (see Tex. Code Crim. Proc. Article 38.23), hardly operates in the same fashion as its federal counterpart.

A recent undertaking by the Court of Criminal Appeals to explain the proper execution of a 38.23 motion was in the 2011 case of State v. Robinson. 334 S.W.3d 776 (Tex. Crim. App. 2011). In Robinson, at a hearing on the defendant’s motion to suppress a DWI blood draw, the State insisted on assuming the burden of proof. The Court obliged and required the State to prove that blood was drawn not only in compliance with the defendant’s constitutional rights, but also in accordance with Tex. Transp. Code § 724.017 (statute requiring, among other things, the taking of a blood specimen in a sanitary place). The trial court suppressed the blood not based on a violation of constitutional rights, but rather the State’s failure to show compliance with the statute. The Court of Criminal Appeals reversed, holding that a defendant moving for suppression on the basis of noncompliance with a statute has the burden as the moving party to produce evidence of a statutory violation. Id. at 779.

There is good company for those perplexed by this holding. Judge Price (Robinson dissenting), and to a lesser degree, Judge Cochran (Robinson concurring), both aptly note that at trial, it would be the State as the proponent of evidence who would “bear the burden of proving [the law] was satisfied.” Judge Price writes:

I fail to see what sense it makes to assign the burden of proof differently when a defendant first broaches the issue in a pre-trial motion to suppress rather than waiting until trial to insist that the State be held to its evidentiary predicate.

To whatever extent the Robinson holding encourages defendants to hold on to 38.23 issues until trial, it promotes judicial inefficiency. However, in this regard, Robinson is a fairly anomalous opinion. Rarely has it ever made strategic sense to file a pretrial motion to suppress based on 38.23 because most 38.23 issues focus upon the State laying a proper predicate to the admission of evidence rather than the establishment of a detailed factual record which should be made outside the presence of a jury.

One of the stronger points that could have been addressed in Robinson is why the courts should treat a pretrial 38.23 motion differently than a pretrial motion regarding the admissibility of scientific evidence. Should the courts ever wish to begin reconciling or simplifying all the rules of procedure that apply in motions to suppress, the framework may have been laid in a case discussed below.

Exclusion of Evidence Based on Tex. R. Evid. 702

In October 2013, the Court of Criminal Appeals issued an opinion in State v. Esparza outlining in detail how a Rule 702 hearing is properly conducted. State v. Esparza, 413 S.W.3d 81 (Tex. Crim. App. 2013). Writing for the majority, Judge Price addressed whether an appellate court may consider a newly raised Rule 702 theory to save a trial court’s otherwise erroneous granting of a statutory motion to suppress in which the trial court misallocated the 38.23 burdens of proof. Judge Price wrote:

It is only “[o]nce the party opposing the evidence objects . . . [that] the proponent bears the burden of demonstrating its admissibility.” Allocation of the burden with respect to scientific reliability as a function of Rule 702 should be no different in the context of a pretrial motion to suppress than it is when the issue is raised during the course of trial. Whether at trial or in a pretrial hearing, the State (as proponent of the breath-test results here) can, of course, be made to satisfy its burden to demonstrate reliability. But it is not called upon to satisfy that burden unless and until the appellee (as opponent) has made a specific objection that those test results are scientifically unreliable or (perhaps) until the trial court, in its capacity as the gatekeeper of the admissibility of scientific evidence, should sua sponte call upon it to do so.In this case, as the court of appeals correctly observed, nothing happened at the trial court level to alert the State that the scientific reliability of the breath-test evidence, as a function of Rule 702, was in play at the hearing on the pretrial motion to suppress evidence [emphasis added].

State v. Esparza, supra, 413 S.W.3d at 86–87.

This explanation is far from groundbreaking; it is the same procedure that has been employed since Kelly and Daubert became the standard for admissibility of scientific evidence. The value of the Esparza case is mostly scholarly. A significant portion of the Esparza opinion is dedicated to juxtaposing the procedures in Texas for the three different types of evidence suppression discussed in this article. By doing so, the majority opinion either unintentionally or perhaps passive aggressively demonstrated the absurdity in maintaining three different sets of procedure for nearly identical legal mechanisms.

Perhaps Esparza can serve as a building block in an effort to employ a simplified single standard in all motions to exclude or suppress evidence. But, for now, the “Choose Your Own Adventure” model remains the law of procedure in Texas and will undoubtedly continue to provide no shortage of cautionary tales. Even with a simple understanding of the nuts and bolts of the shifting burdens of proof in a motion to suppress, a criminal practitioner will occasionally be able to exploit his or her opponent’s burden and provide value to clients.

Following is what we, as practitioners, should take away from these cases. The diagram on the facing page sets out the nuts and bolts and provides a quick black letter reference along with some lesser-known provisions of the code that can be quite handy in in any type of motion to suppress hearing.

Texas Code of Criminal Procedure Article 28.01. Pre-Trial

Sec. 1

(6) Motions to suppress evidence—When a hearing on the motion to suppress evidence is granted, the court may determine the merits of said motion on the motions themselves, or upon opposing affidavits, or upon oral testimony, subject to the discretion of the court;

Texas Code of Criminal Procedure Article 28.02. Order of Argument

The counsel of the defendant has the right to open and conclude the argument upon all pleadings of the defendant presented for the decision of the judge.