Lanny Begley

Lanny Begley received his B.A. in Political Science from Austin Peay State University in Tennessee and his JD from Baylor University School of Law, where he was active in both Phi Alpha Delta and the Order of Barristers. Lanny previously worked in both civil and federal administrative law before going into criminal defense full time. Since 2015, he has had the pleasure of defending clients throughout Dallas–Fort Worth as an associate attorney with the Coffey Firm. He is a member of the National College of DUI Defense, the Tarrant and Dallas County Criminal Defense Lawyers Associations, and sits on the Board of Directors for the Arlington Young Lawyers Association. He can be reached at .

There Won’t Be Blood

Evidence obtained from the defendant’s blood is often the lynchpin in a Texas criminal case. And since the analysis of blood is such an intensely scientific process, no wonder the State (and often the Defense) employs an expert to testify about it. But before we consider the analysis of a blood specimen, we must first consider how the specimen was collected, and by whom it was collected, to determine its admissibility. The purpose of this article is to explore the law applicable when law enforcement conducts a blood draw. More specifically, is there a difference between a blood sample obtained via the implied consent statute and one obtained via a search warrant? Further, this article will analyze some critical terms used in the controlling blood-draw statute and the case law governing their application. That is, what is a “qualified technician” and “emergency medical technician,” or EMT?

Rethinking Johnston and Who Can Draw Blood Under Chapter 724

Some argue the first thing to examine is whether a blood specimen was collected with implied consent or via a search warrant. They insist that under prevailing case law, if the suspect refused consent and a warrant is issued, the means by which the blood sample was collected is not controlled by Texas statutes. Rather, the collection is examined under a reasonableness test pursuant to the Fourth Amendment and adopted in State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011). See also Schmerber v. California, 384 U.S. 757 (1966). The flaw in this logic, however, is the assumption that Johnston’s reasoning was sound. When we deconstruct the opinion, we find a patchwork of conflicting ideas tenuously connected by leaps in logic, all of which lead the court to a conclusion alienated from the case law and statutes it relied upon to reach the decision.

Let’s first review the facts from Johnston. There, Ms. Johnston had been arrested for DWI and refused to provide a breath or blood specimen. As a result, Officers Stinson and Burkhart obtained a search warrant for a blood draw. Johnston at 651. Upon presenting her with the warrant, Ms. Johnston resisted. Consequently, both officers restrained her and collected the blood sample themselves. Id. at 651–652. Interestingly, one of the officers had received EMT certification, and both officers had completed a weekend training course on venipuncture. Id. Nonetheless, the trial court granted a motion to suppress the blood evidence, determining the officers were not “qualified technicians” under Section 724.017, Tex. Transp. Code. This statute outlines who may conduct blood draws. And at the time of Johnston, EMTs were not allowed to draw blood under prevailing statutes. Id. at 655. The trial court relied upon Schmerber v. California and held the blood draw violated the Fourth Amendment reasonableness standard.

By the time the Court of Criminal Appeals reviewed the case, the issue had been framed in a light far removed from Tex. Transp. Code § 724. In fact, the Court of Criminal Appeals determined that Chapter 724 did not even apply to search-warrant draws. The Court dedicated less than one page of thought to the idea and dismissed it under Beeman v. State, 86 S.W.3d 613 (Tex. Crim. App. 2002). Johnston at 660–661. Then the Court resorted to applying Schmerber. The Court held that when there was a search warrant for a blood specimen in Texas, Chapter 724 did not apply. Furthermore, the test of admissibility was whether the blood draw was reasonable under the Fourth Amendment. It finally reasoned that when two officers with minimal training restrained and drew blood from an individual at a police station and without a recording, that was reasonable under the Fourth Amendment. See, generally, Johnston. Despite the holding, the Court misread Beeman, misapplied Schmerber, and completely ignored the Texas statute designed to control law enforcement blood draws.

Regarding the statute itself, sections of Chapter 724 of the Texas Transportation Code refer to conditions that must be met if a breath or blood specimen is taken at the request or at the order of an officer. An “order” is not defined in the statute, but the term suggests that both consent and non-consent blood draws are controlled by the provisions of Chapter 724. Otherwise, if Chapter 724 was only intended to regulate voluntary blood draws, why did it also include language regulating information provided by officers before requesting specimens? Furthermore, even though it was overturned, sections of the statute also regulated mandatory blood draws obtained without consent. This suggested a legislative intent that Chapter 724 should regulate all blood draws, regardless of whether the draw was voluntary or not.

The Johnston opinion relied primarily on two other cases to reach its erroneous conclusion. First, it relied upon Beeman to conclude that Chapter 724 did not apply to cases where a search warrant was used to obtain a blood specimen. Johnston at 661. However, the Beeman holding was read too broadly by the Court. Rather, Beeman narrowly held that Section 724.013 did not absolutely prohibit the taking of a blood specimen if a person refused to provide one voluntarily. Beeman at 616. (But even this reading was questionable. Regarding separation of powers, it could be interpreted as legislating from the bench.) Additionally, the aspect of Beeman relied upon by the Johnston court also indicated that a search warrant made consent moot. In either event, none of this reasoning came close to deciding that a search warrant for blood removed the necessity that law enforcement comply with Chapter 724 before obtaining a blood sample from a suspect.

The other case Johnston erroneously relied upon was Schmer­ber v. California, 384 U.S. 757 (1966). Schmerber examined the exigent circumstances that might create an exception for the need to obtain a search warrant for blood. But again, this was a far cry from the issues the Johnston court was deciding. Schmerber involved a hospital doctor taking a blood sample from an unconscious suspect without a search warrant. Id. at 771. Significantly, this procedure has since been heavily legislated and questioned (if not outright condemned) in other cases at both national and state levels. See Missouri v. McNeely, 133 S.Ct. 1552 (2013), and State v. Villareal, 475 S.W.3d 784, 787 (Tex. Crim. App. 2014). Nevertheless, the reasonableness test of Schmerber was applied to determine whether the medical procedure of a doctor drawing a patient’s blood in a hospital was reasonable. Not surprisingly, the procedure was found to comply with Fourth Amendment standards. However, the Supreme Court also warned against the implications of blood draws conducted by the police in police stations:

We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment—for example, if it were administered by police in the privacy of a station house. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.

Schmerber at 771–772.

In Johnston, the Court of Criminal Appeals’ reliance on Schmerber defied logic, especially since Schmerber specifically warned against the exact fact pattern in Johnston! Moreover, Johnston was made even more questionable by the application of Chapter 724 requirements in Krause v. State, 405 S.W.3d 82 (Tex. Crim. App. 2013), a case in which the blood draw was not voluntary (though it related to a now-defunct mandatory blood-draw statute). Consequently, defense attorneys should make sure to litigate Chapter 724 issues in any case involving blood draws, regardless of whether the suspect voluntarily submitted to the officer’s request, or whether the suspect refused and a search warranted was issued. Chapter 724 suggests it should apply in both situations, and any arguments to the contrary are unsupported and likely incorrect.

The Statute

Now that we’ve crafted a good argument why Chapter 724 applies to both voluntary blood draws and those depending upon a search warrant, let’s look at the chapter sections regulating who may draw the blood specimen. Tex. Transp. Code § 724.017(a) states in relevant part:

(a)  Only the following may take a blood specimen at the request or order of a peace officer under this chapter:

1)   A physician;
2)   A qualified technician;
3)   A registered professional nurse;
4)   A licensed vocational nurse; or
5)    A licensed or certified emergency medical technician-intermediate or emergency medical technician-paramedic authorized to take a blood specimen under Subsection (c)

Tex. Transp. Code § 724.017(a)

The correct application of this statute should not be overlooked, as a mistake can often make blood specimens inadmissible, depending upon the qualifications of the person drawing the blood. Procedurally, State v Robinson, 334 S.W.3d 776, 778 (Tex. Crim. App. 2011), decided that when the State sought to admit blood-alcohol concentration evidence at trial, as the proponent of evidence, it must fulfill all required evidentiary predicates and foundations including those of Section 724.017.

EMT Blood Draws

Courts have held that establishing the predicate of Section 724.017 was necessary before admitting evidence regarding a person’s blood-alcohol concentration offered by the State. Garcia v. State, 112 S.W.3d 839, 848 (Tex. App.—Houston [14th Dist] 2003, no pet). Regarding emergency medical technicians, or EMTs, this controlling statute recently changed. Prior to the current version of Section 724.017, EMTs were prohibited from conducting blood draws admitted in criminal cases. Nevertheless, case law created exceptions where an EMT could be considered a “qualified technician” under the previous version of Section 724.017(a). Importantly, some of this case law is still relevant today when determining what a “qualified technician” is under the statute. And thankfully, the legislature clarified the issue of an EMT’s ability to draw blood when the statute was amended in September 2013, at which time they added 724.017(a)(5) and 724.017(c). Subsection 724.017(a)(5) now states an EMT may conduct a blood draw, but only if they were authorized under Subsection (c). That subsection states:

A licensed or certified emergency medical technician-intermediate or emergency medical technician-paramedic may take a blood specimen only if authorized by the medical director for the entity that employs the technician-intermediate or technician-paramedic. The specimen must be taken according to a protocol developed by the medical director that provides direction to the technician-intermediate or technician-paramedic for the taking of a blood specimen at the request or order of a peace officer. In this subsection, “medical director” means a licensed physician who supervises the provision of emergency medical services by a public or private entity that:

(1)  provides those services; and

(2)  employs one or more licensed or certified emergency medical technician-intermediates or emergency medical technician-paramedics.

(c-2)  If a licensed or certified emergency medical technician-intermediate or emergency medical technician-paramedic takes a blood specimen at the request or order of a peace officer, a peace officer must:

(1)  observe the taking of the specimen; and

(2)  immediately take possession of the specimen for purposes of establishing a chain of custody.

Tex. Transp. Code § 724.017(c) and (c-2).

In short, before an EMT is authorized to conduct a blood draw, they must: (1) be authorized by the medical director of their facility; (2) the medical director must be a licensed physician who supervises emergency medical services, and (3) the blood specimen has to be taken according to the protocol developed by said medical director for the taking of specimens at the request or order of a peace officer. Furthermore, if all these prerequisites are met, the officer must observe the collection of the specimen and immediately take possession of it. These prerequisites must be proven before such a sample is admissible. And not surprisingly, they are often overlooked by law enforcement agencies.

Qualified Technician Blood Draws

If the blood drawer does not meet one of the immediately obvious criteria of the statute (e.g., physician, registered professional nurse, or licensed vocational nurse), it is error to admit a blood sample without evidence demonstrating the individual was a “qualified technician” under Section 724.017(a). Cavazos v. State, 969 S.W.2d 454, 456 (Tex. App.—Corpus Christi 1998, pet ref’d). Essentially, a qualified technician is someone who possesses experience and training sufficient to meet the qualification threshold. When the State relies upon this subsection, however, they have to prove it—even when a phlebotomist drew the blood. Because “phlebotomist” was not listed among those individuals automatically qualified, a blood sample taken by a phlebotomist satisfied the statute only when the individual was proven to be a “qualified technician.” Torres v. State, 109 S.W.3d 602, 605 (Tex. App.—Fort Worth 2003, no pet.).

In Cavazos, the court held it was error to admit a blood sample taken by a phlebotomist employed at a hospital without evidence showing they were a qualified technician under Section 724.017(a). There, the State failed to make this showing because no one testified regarding the person’s qualifications. Furthermore, the record contained no evidence the blood was drawn by someone the hospital had determined to be qualified. Cavazos at 456. Nevertheless, phlebotomists have been held to be qualified technicians, but only after the phlebotomists, or their supervisors, testified regarding their qualifications. State v. Bingham, 921 S.W.2d 494, 495–96 (Tex. App.—Waco 1996, pet. ref’d.). See also, Krause v. State, 405 S.W.3d 82 (Tex. Crim. App. 2013)(analyzing whether an EMT was a qualified technician).

Defense attorneys should be wary of any discovery listing a “qualified technician” as the person who conducted a blood draw, as this is often an EMT (who is now regulated under a dif­ferent section of the statute) or an individual whose qualifications have not been established. One must look to extrinsic evidence to determine their qualifications, and case law provides guidance as to who may be a “qualified technician.” For instance, in Torres the individual who drew blood was determined to be a qualified technician after showing they had: (1) been practicing phlebotomy for 26 years; (2) were employed by the hospital specifically for phlebotomy; (3) were certified by the National Phlebotomy Association; and (4) had conducted “thousands and thousands and thousands of blood draws” throughout their career. Torres v. State, 109 S.W.3d 602, 605. In the Bingham case, the court determined someone was a qualified technician after showing they had: (1) completed four months of classes and phlebotomy training with a college, focusing primarily on anatomy and blood work; (2) they were employed as a phlebotomy technician; and (3) the Medical Technologist/Supervisor of the Hematology Lab at the hospital testified to their qualifications, which included multiple clinical rotations. State v. Bingham, 921 S.W.2d 494, 494–96. Lastly, in Krause it was proven the individual in question had been certified as an intermediate EMT and had been hired on at the hospital, where their primary duty was drawing blood and had been doing so for six years, averaging 50–100 blood draws daily. 405 S.W.3d at 84.

Looking to outside sources, it appears the closest thing to a “qualified technician,” as envisioned by the statute, is a Certified Phlebotomist. To obtain this certification,1 individuals must pass courses in Medical Terminology and Human Disease/Pathophysiology. They then complete courses entitled Phlebotomy I and Phlebotomy II. Both of these are 6 weeks long with more than 100 combined contact hours, requiring passing grades on multiple quizzes and tests and completing numerous types of blood draws during class. After completing these courses, individuals must sit for board examinations accredited by the American Society of Clinical Pathology to earn the title Certified Phlebotomist. Finally, to maintain this certification, which renews every three years, a Certified Phlebotomist must complete continuing education courses.

Anyone claiming to be a “qualified technician” under Chapter 724 of the Texas Transportation Code should be thoroughly vetted. Common issues to look for include EMTs passed off as qualified technicians. Under the latest version of the statute, EMTs must be held to the strict standards outlined and discussed above. By far, though, the most egregious misapplication of this standard is when police attempt to pass off an individual with little or no training as a qualified technician. As noted in Johnston, in the Dallas–Fort Worth area, Dr. Del Principe offered weekend training courses to law enforcement officers, who might subsequently argue they were qualified technicians. But upon a closer reading of Johnston, we see the training offered to officers and jailers was simply a 14-hour weekend course that entailed performing only 50 blood draws. There was no other medical education or training prerequisite. Johnston at 652. Comparing this training with that required of Certified Phlebotomists, it was obvious such minimal instruction was a veiled attempt by law enforcement to sidestep the responsibilities placed on them by the legislature. But as defense attorneys, it is now imperative we hold judges, law enforcement personnel, and the prosecution to those high qualification standards set by Chapter 724 of the Texas Transportation Code.


1. In accordance with the teaching schedule of Soni Cecil, ASPC Certified Coordinator of Health Professions, Dallas County Community College District.

The Leming Opinion Is Not the Silver Bullet Prosecutors Claim

Safe Weaving Is No Basis for a Stop

Those familiar with criminal defense in the state of Texas have likely encountered the issue of weaving within the lane as a basis for a police stop. It’s been referred to numerous ways: “weaving within the lane,” “safe weaving,” “failure to maintain the lane,” etc. What it ultimately boils down to is someone being stopped by an officer for either weaving within the lane they are driving in, or maybe even slightly out of the lane, and subsequently being arrested for a DWI or some other offense. This is fertile ter­ri­tory for Motions to Suppress, as Texas case law has long stated that there needs to be some additional, unsafe element to justify a stop by law enforcement.

However, prosecutors across the state are now rejoicing with release of the Court of Criminal Appeals’ Leming opinion. This case is now being cited by prosecutors as the magic new case that makes suppression matters based on weaving within the lane a moot point, and a cursory glance at the opinion may suggest as much. But this opinion is hardly the super weapon that prosecutors think it is. The purpose of this article is to explore what has long been the practice of this state’s courts in dealing with these issues and interpreting the relevant statutes. It will also look to why the argument relied on by prosecutors based on the Leming opinion is, at best, persuasive dicta, and how to argue against it.

First, a brief discussion of the history of cases that have shaped how the defense approaches this issue is necessary. The statute controlling this matter is Texas Transportation Code Sec. 545.060, titled “Driving on Roadway Laned for Traffic.” In relevant part, it states:

(a)   An operator on a roadway divided into two or more clearly marked lanes for traffic:

(1)   shall drive as nearly as practical entirely within a single lane; and
(2)   may not move from the lane unless that movement can be made safely.

Courts have traditionally held that this means, in the event of a driver not maintaining their lane (weaving lightly outside of the lane, tires touching the lane dividers on either side, etc.), the “and” at the end of subsection (a)(1) makes subsection (a)(2) an additional requirement for there to be suspicion of any actual statutory violation. Therefore, something unsafe must accompany this weaving to justify a stop.

This has been illustrated in numerous cases. First, in State v. Tarvin, 972 S.W.2d 910 (Tex.App.—Waco 1998), a police officer stopped the Appellant after observing Appellant’s car drift two or three times to the right side of a two-lane road, causing his tires to go over the solid white line at the right-hand side of the road. The Court determined that mere weaving in one’s own lane of traffic can justify an investigatory stop only when that weaving is erratic, unsafe, or tends to indicate intoxication or other criminal activity. Since the Court found that there was nothing in the record to show that the officer there believed that to be the case, the stop was not justified. Id. at 912.

The same determination was made in Hernandez v. State, 983 S.W.2d 867 (Tex.App.—Austin 1998). In this case, the Court concluded that a single instance of crossing a lane dividing line by 18 to 24 inches into a lane of traffic traveling the same direction without showing the movement unsafe or dangerous does not give an officer a reasonable basis for suspecting that the defendant had committed a criminal traffic offense. Violations occur only when a vehicle failed to stay within its lane and the movement was not safe or was not made safely.

This can also be seen in State v. Cerney, 28 S.W.3d 796 (Tex.App.—Corpus Christi 2000), wherein the testimony established that Appellant was weaving somewhat within his own lane of traffic. There was no evidence that his actions were unsafe, and the court concluded the evidence did not support a finding that the trooper had a reasonable belief that the defendant had vio­lated Section 545.060 of the Transportation Code. Similar decisions were made in Ehrhart v. State, 9 S.W.3d 929 (Tex.App.—Beaumont 2000, no pet.), Eichler v. State, 117 S.W.3d 897 (Houston, 2003), State v. Palmer, 2005 SW3d LWC 1646 (Tex.App.—Fort Worth 2005), and Fowler v. State, 266 S.W.3d 498 (Tex. App.—Fort Worth 2008).

The Court of Criminal Appeals has looked at this issue regarding a Community Caretaking argument. In Corbin v. State, 85 S.W.3d 272 (Tex.Crim.App. 2002), the Court found that slow driving and crossing into another lane, or onto the shoulder, for a length of 20 feet is not enough to constitute a stop under the Community Caretaking doctrine. The Court found that it was not objectively reasonable for an officer to believe that the Appellant’s driving conduct showed them to be in need of assistance. In short, while many an arresting agency has undoubtedly used weaving within the lane as basis to pull citizens over, ample case law exists to have these stops and any subsequent evidence suppressed.

The Leming Opinion

Leming is the new plurality opinion released by the Court of Criminal Appeals on April 13, 2016 (PD-0072-15, 2016 WL 1458242). At the trial court level, appellant filed a Motion to Suppress the product of the traffic stop by which the offense was discovered. The motion was denied, and later appealed to the Texarkana Court of Appeals, where the trial court’s ruling was reversed in Leming v. State, 454 S.W.3d 78 (Tex.App.—Texarkana 2014). In this case, the established facts were that the arresting officer received a report from a dispatcher that a car was driving erratically. The officer was able to find the vehicle that the citizen was calling in about. Upon following the appellant’s vehicle, the officer observed the vehicle weaving back and forth, from almost touching the curb on the right and back to touching the lane dividing line on the left multiple times. The arresting officer also observed the Appellant driving 13 mph under the posted speed limit, and continuously decelerating further. The plurality opinion analyzed both the relevant statute and what constitutes reasonable suspicion for a stop under said statute—and whether the driving behavior presented in the case was, in and of itself, a reasonable basis for a stop.

The plurality opinion, written by Justice Yeary, joined by Justice Keller (justices Richardson and Meyers concurring), re-analyzes Texas Transportation Code Sec. 545.060. This analysis goes against the aforementioned history of Texas courts’ application of the statue. Primarily, the plurality determined that Texas Transportation Code Sec. 545.060(a)(1) and (2)’s conjunction “and” makes both of these subsections an independent basis for a police stop, not one that requires both a vehicle to weave within the lane and for there to be something fundamentally unsafe about it. Instead, the opinion determines that either of these can be a legal basis for a stop.

First and foremost, a four-judge plurality opinion is not binding, and has questionable precedential value. See Vernon v. State, 841 S.W.2d 407, 410 (Tex.Crim.App.1992). While concurring, Justice Alcala specifically does not concur with the section of the opinion about the interpretation of Texas Transportation Code Sec. 545.060. The dissenting justices Newell, Keasler, Johnson, and Hervey also obviously disagree with the plurality’s statutory interpretation. The dissent of Justice Keasler, which is joined by justices Johnson and Hervey, specifically points to the ridiculousness of interpreting the plain meaning of the word “and” to mean “or.” It additionally distinguishes the other statutes that the opinion of Justice Yeary relies on in the plurality interpretation of the statute. As stated for various reasons by a majority of the Court of Criminal Appeals, this heretofore unheard-of analysis of the statute is not sound, and should not be applied. Justice Newell’s dissent specifically agrees with Keas­ler’s regarding the interpretation of the statute.

Ultimately, a majority of the justices do not agree on this new interpretation of Texas Transportation Code Sec. 545.060, and defense attorneys should be articulating this early and often. The only thing that a majority of the Court may be agreeing on in this case is that failure to maintain the lane—when combined with a confirmed 911 call for erratic driving and driving 13 mph under the speed limit and continuing to decelerate—may be a reasonable cause for an officer to conduct a traffic stop. Fur­ther­more, as of the time of this writing the Leming opinion has not been released for publication in the permanent law re­ports, and while unlikely, it could be subject to revision or withdrawal until it is released. This plurality’s radical departure from established case law and statutory interpretation should not be applied unless or until a majority of the Court determines it should be. Indeed, there is a history of such opinions falling to the wayside in Texas jurisprudence.

The Autran Legacy

Precedent exists of ignoring the reasoning of a three-judge plurality opinion, and one need look no further than history of the Court of Criminal Appeals’ Autran decision for an excellent example. Regarding inventory searches, the Supreme Court of the United States has essentially determined that so long as reasonable police procedure is in place and there is no bad faith, inventory searches, even of closed containers, of a vehicle are allowed. See Colorado v. Bertine, 479 U.S. 367, 107 S. Ct. 738, 93 L. Ed. 2d 739 (1987), and Florida v. Wells, 495 U.S. 1, 110 S. Ct. 1632, 109 L.Ed. 2d (1990). States, however, may offer greater protections of their citizens’ rights than the constitutional minimums, and that is exactly what a plurality of the Court of Criminal Appeals purported to do in Autran v. State, 887 S.W.2d 31 (Tex.Crim.App. 1994).

This case involved a search of closed containers in the trunk of a van incident to arrest. The Appellants argued that while it is technically legal under case law regarding the Fourth Amendment, the Texas Constitution offers broader protections. After in-depth analysis of Texas’ Constitution Art I § 9, the Court held Texas offers broader protection. Specifically:

that art. I, § 9, provides a privacy interest in closed containers which is not overcome by the general policy considerations underlying an inventory. This holding is consistent with the comparable jurisprudence discussed in Part IV, D, of this opinion. Just as those courts found greater protection under their state constitutional provisions concerning searches and seizures, we hold art. I, § 9, provides greater protection than the Fourth Amendment in the context of inventories. The officers’ interest in the protection of appellant’s property, as well as the protection of themselves from danger and the agency from claims of theft, can be satisfied by recording the existence of and describing and/or photographing the closed or locked container. This is not to say that officers may never search a closed or locked container, only that the officers may not rely upon the inventory exception to conduct such a warrantless search. We refuse to presume the search of a closed container reasonable under art. I, § 9, simply because an officer followed established departmental policy.

Id. at 41–42.

However, this was a three-judge plurality opinion, with four of the judges concurring in three separate concurrences, and the presiding judge dissenting. This opinion was applied once, in State v. Lawson, 886 S.W.2d 554 (Tex.App.—Fort Worth 1994), in which the Fort Worth Court of Appeals decided to apply the Autran reasoning to inventory searches, specifically stating: “As an intermediate appellate court, we follow the law as enunciated by the highest courts in this state. Accordingly, the State’s only point of error is overruled.” Id. at 556. However, numerous other appellate cases followed that chose not to apply Autran. In Madison v. State, 922 S.W.2d 610 (Tex.App.—Texarkana 1996), the Court refused to recognize Autran as binding precedent. Furthermore, in Hatcher v State, 916 S.W.2d 643 (Tex.App.—Texarkana 1996), the same court chose to expressly ignore Autran as binding precedent due to its being a plurality opinion. The Texarkana Court of Appeals specifically pointed to other opinions since made that failed to recognize or mention Autran, though it was relevant, and called the plurality opinion “unsound law.”

The Dallas Court of Appeals summed up the issues well in Trullijo v. State, 952 S.W.2d 879 (Tex.App.—Dallas 1997), where it discussed the split between the Fort Worth and Texarkana Court of Appeals application of Autran. The Dallas Court also discussed the fact that a three-judge plurality is not binding precedent—and the Court of Criminal Appeals’ refusal to provide a definitive answer on the issue in the face of conflicting decisions by two courts of appeals—and chose not to apply it either. Even the Fort Worth Court of Appeals later reversed its position in Lawson in Jurdi v. State, 980 S.W.2d 904 (Tex.App.—Fort Worth 1998).

The Takeway

While the Leming opinion creates a new challenge for defense attorneys, one should not allow the prosecution to characterize it as anything more than what it is, which is, at best, persuasive dicta. And with only three of the nine Justices of the Court of Criminal Appeals taking the stance that matters most here, even its persuasiveness is suspect.