January/February 2022 SDR – Voice for the Defense Vol. 51, No. 1

Voice for the Defense Volume 51, No. 1 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

I hope everyone had a wonderful holiday season. I thought about everyone and how difficult it must have been to celebrate the new year without a January print edition of the Significant Decision Report. I’ve tried to step up my game here in the inaugural entry in Vol. XXXVII. So, what do we have this month? The Attorney General is now basically prohibited from prosecuting criminal offenses, we discuss comedian Jeff Ross, and we consider whether statements akin to “hulk smash” constitute assault by threat. Also, I’ve got a Hawaiian Punch joke, and you won’t get it, but sometimes I got to do things for my own entertainment (this thing is 36 pages . . . ).

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.

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.

This publication is intended as a resource for the membership and I welcome feedback, comments, or suggestions: (972) 369-0577.

Kyle Therrian

United States Supreme Court

The United States Supreme Court did not hand down any published opinions since the last Significant Decisions Report.

Fifth Circuit

United States v. Ortega, 19 F.4th 831 (5th Cir. 2021)

Issue. Does a trial court improperly delegate a core judicial function to the probation office when it orders inpatient treatment lasting for a period of 4-12 months and a release date in that period to be determined by the probation officer?

Facts. Defendant pleaded guilty to possession of stolen mail in 2016 and went to prison. After completing her initial period of imprisonment, defendant violated her supervised release and the trial court sentenced her to an additional period of imprisonment as well as an additional year of supervised release. As a condition of defendant’s future supervised release, the trial court ordered defendant to “reside in a Reentry Center and successfully participate in a Residential Reentry Program for a period of at least 4 months to be released at the discretion of the probation officer.”

Holding. No. The trial court may delegate the authority to determine “details” of supervised release but not the “core judicial function” of imposing a sentence. The trial court errs when it abdicates to the probation office “the final say on whether to impose a condition.” The trial court does not err when it assigns to the probation office the task of supervising a treatment program’s “modality, intensity, and duration.” Here the trial court provided more specificity than in cases where this court has found an improper delegation of authority. Considering the trial court’s order another way, it simply provided the probation office an 8-month window to determine when release is appropriate. This is hardly substantial enough to amount to an improper delegation of a “core judicial function.”  

Texas Court of Criminal Appeals

Middleton v. State, No. PD-1236-20 (Tex. Crim. App. 2021)

Issue. “When a defendant is placed on deferred adjudication, and he is later charged with a new offense, and the punishment stage for both the deferred-adjudication offense and the new offense occur in the same proceeding, have the two cases been tried in the same criminal action for the purpose of determining whether the sentences can be stacked?”

Facts. A trial court placed the defendant on deferred adjudication probation for three theft offenses. During the period of probation, he committed two new thefts. The State filed two new charges and three motions to adjudicate the three earlier theft cases. After a hearing on all five cases simultaneously, the trial court found defendant guilty of each charge, sentenced defendant to two years confinement in each case, and stacked all five sentences. The court of appeals held that the sentences should run concurrently after concluding that they arose from a single episode and that the State prosecuted them in a single criminal action. 

Holding. Yes. Penal Code § 3.03 mandates concurrent sentencing “[w]hen the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action.” The definition of “same criminal episode” includes “the repeated commission of the same or similar offenses.” “Because all of Appellant’s offenses were thefts, they constituted the repeated commission of the same or similar offenses under the statute.” The definition of “single criminal action” includes a consolidated punishment hearing on two or more separate offenses regardless of when a plea is entered. “Criminal action” refers to a trial or plea proceeding. A plea proceeding is not concluded until punishment is assessed. The fact that a defendant was on deferred adjudication is significant, as well. The language of the deferred adjudication statute “contemplates a pause, as if the case were taken under advisement. . . .  If [the defendant] fails, and the trial judge later finds a violation of probation and decides to adjudicate guilt, the proceedings continue where they left off: [the proceedings continue as if adjudication of guilt had not been deferred].”

Regular probation is different. A sentence received upon revocation of regular conviction-based probation is stackable upon a new offense committed during the probationary period. But deferred adjudication probation differs from conviction-based probation in enough ways to justify different treatment here. A deferred felony probationer remains eligible for regular probation in a future case because he is not considered to have a final felony conviction. This is not true for the regular felony probationer. A deferred probationer is subject to the full range of punishment upon revocation. This is not true for the regular felony probationer. A deferred defendant adjudicated guilty may file a post-adjudication motion for new trial to undo the conviction. This is not true for the regular felony probationer.

Comment. The court gives a very open-ended definition to “same criminal episode.” In Ex parte Ferris, No. 05-19-00835 (Tex. App. Dallas, Oct. 2, 2020)(en banc) the Fifth Court of Appeals concluded that 2015 DWI conviction and a 2019 DWI acquittal were not part of the same criminal episode for purposes of denying an expunction of the 2019 DWI acquittal. In that case the trial judge stated, “I’ve never seen a case where, after the first case is disposed of via a plea and the second crime occurs after the first case is disposed of, that that is described or included within the phrase ‘same criminal episode.’” Ferris is now before the Supreme Court of Texas (expunction appeals are civil in nature). Though the length of time between the commission of the two offenses in Ferris is longer than it is here, this case presents a potential for disagreement between the Supreme Court and the Court of Criminal Appeals on what constitutes a “same criminal episode.” 

Brooks v. State, No. PD-0703-20 (Tex. Crim. App. 2021)

Issue. Does the statement “I need to hit” constitute a threat?

Facts. The State charged the defendant with aggravated assault family violence. The State alleged in their indictment that the defendant “threaten[ed] [the victim] . . . with imminent bodily injury by telling her that he was going to end her life, and the defendant did use or exhibit a deadly weapon during the commission of the assault, to wit: a piece of wood.” According to the victim, the defendant choked her, hit her with a board, and stated “I need to hit.” The Court of Appeals found the statement “I need to hit” insufficient to establish an assault-by-threat.

Holding. An appellate court reviews sufficiency of the evidence in the light most favorable to the prosecution, and that “ordinarily means resolving any ambiguities in the evidence in the prosecution’s favor.” When considering the defendant’s statement in the context of what was occurring, it is fair to resolve the ambiguity in favor of maintaining the conviction. “Appellant beat her, told her ‘I need to hit,’ and beat her some more.”

Comment. I’m not sure why the State didn’t indict him for physical assault instead of verbal assault. Also, I found this line funny: “Appellant cites several cases in which the phrase ‘I need to hit’ was included in a defendant’s statement as examples of the phrase being a verbal threat . . .” I’m over here banging my head against the wall trying to figure out “how much proof is probable cause” and this lawyer lucks out on several (several?) cases in which a defendant said: “I need to hit.” How weird is that?

Inthalangsy v. State, No. PD-1000-20 (Tex. Crim. App. 2021)

Issue. A murder in the course of kidnapping is capital murder. (1) Where a defendant kills two victims—only one of which he kidnapped—is evidence that he ultimately killed the kidnappee admissible in the capital murder prosecution for killing the non-kidnappee under Texas Rule of Evidence 404(b) (extraneous offense limitations)? (2) Is it under Texas Rule of Evidence 403 (substantial prejudice)?

Facts. A jury convicted the defendant of capital murder for a murder he committed in the course of kidnapping. Defendant killed two people after $70,000 worth of drug profits went missing. The victims were a couple (boyfriend-girlfriend) who the defendant and his accomplice believed stole that money. The State alleged that the defendant killed the boyfriend and in the same transaction kidnapped the girlfriend and killed her later. The State wanted to present evidence of both killings in the prosecution for murdering the non-kidnappee. The trial court permitted this after overruling defendant’s extraneous offense and Rule 403 objections. The court of appeals reversed. The court of appeals explained that the girlfriend’s death did not make the kidnapping more or less probable, and the probative value of the second murder was substantially outweighed by unfair prejudice caused by the violent nature of the offense.

Holding. (1) Yes. Kidnapping was an element of proof in the prosecution of capital murder for the killing of the non-kidnappee. One way to commit the offense of kidnapping is by using or threatening deadly force. The fact that defendant shot the kidnappee to death is evidence that the kidnappee was restrained in exactly such a manner. “[T]here is a logical connection between the violent death of Cassie and the kidnapping charge. Thus, the fact that Cassie was killed is a fact of consequence in the action.” Not only was this evidence of the charged offense, but it also constituted same-transaction contextual evidence which “illuminate[d] the nature of the crime alleged.” The jury needed to know about the girlfriend’s death. “A juror would naturally wonder . . . why [the kidnappee] did not testify about what happened to her on May 7.” (2) Yes. While the jury could have been confused about who the defendant is on trial for murdering and even become inflamed by the fact that the defendant murdered two people, the State had a moderate need for the evidence of the second victim’s death. The State needed to show that the kidnappee was restrained by deadly force.

Comment. I agree with the fact that the girlfriend’s death is evidence probative of the kidnapping. I think the analysis could have ended there. I’m not sure I agree with the need to dispel the potential curiosity of a juror about why a victim isn’t present to testify as basis for admitting same-transaction contextual evidence of her murder. The jury receives instructions to only consider evidence presented in court. Defendants must live by the strength of such admonishments every day, why can’t the State?

Lerma v. State, No. PD-0075-19 (Tex. Crim. App. 2021)

Issue. Under the penalty of dismissal, Texas Rule of Evidence 508 requires disclosure of an informant’s identity when disclosure is “necessary to a fair determination of guilt or innocence.” When officers feign ignorance as to the informant’s identity in a 508 hearing, may the trial court use this as evidence sufficient to order a dismissal?

Facts. Using a confidential informant, narcotics officers conducted a controlled buy from a drug dealer (“Dealer”) and that drug dealer’s roommate (“Roommate”). Officers knew both Dealer and Roommate worked together to sell drugs from their home. Several months after the controlled buy, defendant and his friends tried to rob Dealer and Roommate. During the robbery, Dealer shot and killed Roommate and shot and wounded several of the robbers. The State charged defendant with the capital murder of Roommate. Even though Dealer was the only person to fire a gun during the robbery, the State declined to charge Dealer. During the capital murder prosecution, defense counsel learned that the State also declined to charge Roommate in connection with the earlier controlled buy. Counsel suspected that Roommate was the earlier confidential informant and Dealer used the robbery as an opportunity to kill Roommate. Defendant sought an order requiring the State to disclose the identity of the confidential informant. The trial court granted defendant’s request. While mandamus was pending, the parties agreed to conduct a Rule 508 hearing in the trial court whereby the trial court would determine whether identity of the informant must be disclosed under threat of dismissal.

At the Rule 508 hearing the prosecutor informed the trial court that the State had expected officers to identify the informant for purposes of an in-camera evaluation, but the officers suddenly forgot the identity of the informant before the hearing. Several officers took the stand and told the trial court under oath that they could not remember and did not document the informant’s identity. They also admitted the possibility that the informant, whose identity they couldn’t remember, might possess exculpatory information. “Combined with the fact that the State utilized every means available to resist disclosure of the informant’s identity, the trial court found that the Task Force officers’ claim that they simply did not know the informant’s identity lacked credibility.” After defense filed a motion to dismiss under Rule 508, the task force commander told the prosecutor that the officers did in fact know the identity of the informant, but that they would refuse to disclose it to defense counsel. The trial court, having quite enough, dismissed the case. The State appealed. The court of appeals reversed.

Holding. Yes, probably, but there was additional evidence here. Texas Rule of Evidence 508 makes the identity of a confidential informant privileged. It also provides that, in a criminal proceeding, it must be disclosed “if the court finds a reasonable probability exists that the informer can give testimony necessary to a fair determination of guilt or innocence.” The State’s persistence in refusing disclosure after such a finding triggers a mandatory dismissal of charges under the Rule. “Since the defendant may not actually know the nature of the informer’s testimony . . . he or she should only be required to make a plausible showing of how the informer’s information may be important. . . . The Rule 508 burden is not a high one, and Appellee met his burden to make a plausible showing of how the informant’s information may be important.” Here, the defendant showed: (1) the existence of an informant, (2) the non-charging of the shooter’s accomplice drug dealing roommate, (3) the drug dealer shot and killed his roommate during the robbery, (4) the vigorous fight to prevent disclosure, (5) the agreement to have a hearing about disclosing the identity and sudden amnesia of law enforcement, (6) the task force’s policies and procedures, and (7) the admission that exculpatory information was possible, (8) the post-hearing disclosure that officers lied from the witness stand. Even if the trial court had relied on the officer’s lying and scheming, this could amount to evidence in some contexts. In civil cases “A party’s intentional destruction of evidence may . . . be sufficient by itself to support a finding that the spoliated evidence is both relevant and harmful to the spoliating party.”

Dissent (Keller, P.J.). If the confidential informant is the roommate, the roommate is now dead and unable to testify. If the confidential informant is a third person, that third person is not a confidential informant to the capital murder. Moreover, the State must disclose Brady evidence notwithstanding Rule 508.

Comment. This was a tooth and nail fight about whether narcotics officers must disclose the identity of their informant. It included a district court hearing, a gag order, a mandamus petition to the court of appeals, a mandamus petition to the court of criminal appeals, a motion to hold that appeal in abeyance, the granting of the abeyance, plans to conduct a 508 hearing. This all culminated in the police saying “whoops we forgot who the informant was, na-na-na-na boo-boo, we can lie on the witness stand in a jurisdiction where the prosecutor lets us do what we want.” (not a direct quote). Some shady stuff is going down in Hays County. A stronger-than-useless prosecutor would have dismissed the case on his own motion rather than bothered the Court of Criminal Appeals with his quest to fight for narcotics agents who felt entitled to play games with the court system. See Texas Code Crim. Proc. art. 2.01; Tex. R. Disciplinary Procedure 3.03.

Bahena v. State, No. PD-0653-20 (Tex. Crim. App. 2021)

Issue. Texas Rule of Evidence 803(6)(D) (business records exception) requires the testimony of sponsoring witness who is either: (1) the custodian of the record, or (2) another qualified witness. When the opponent of a business record objects and claims a sponsoring witness is not a custodian of records, has the opponent necessarily raised an objection and preserved error as to whether the sponsoring witness is another qualified witness?

Facts. A sheriff’s deputy recorded defendant’s jail calls. That deputy was unavailable to testify at trial, so the State called the deputy’s sergeant as a sponsoring witness instead. The sergeant admitted he was not the one who collected and compiled defendant’s recordings onto a disc. However, he testified about his tactical unit’s practice of collecting recorded phone calls, the jail’s procedures for linking phone calls to individual inmates, and the sheriff’s office normal practice of retaining recorded phone calls. The sergeant also used defendant’s inmate identification and phone codes to link the phone calls to the defendant. Defendant objected and argued that the Sergeant was not a true custodian of records under the Rules of Evidence. The Court of Appeals upheld the trial court’s ruling on error preservation grounds; namely, that business records may be authenticated through a custodian of records or another qualified witness and defendant had only objected to the sergeant as a business records custodian.

Holding. Yes. “We take this opportunity to explicitly disavow and reject the notion that a defendant must specifically object to both prongs of 803(6)(D) [custodian or other qualified witness] to entitle him to a merits review of his hearsay objection. Nonetheless, the sergeant’s testimony satisfies Rule 803(6)’s requirements. Specifically: (1) his testimony established that records were made at or near the time by someone with personal knowledge by automatic recording procedures and retrieval methods using inmate identification codes, (2) his testimony established that it was the regular course of business for the sheriff’s office to keep these records, (3) his testimony established that it was the regular practice for the sheriff’s office to collect these records, and (4) defendant did not show at trial or preserve any argument that the calls lacked sufficient trustworthiness.

Comment. Clint Broden had a great article in 2018 on The “Business Duty” Rule for Business and Public Records. In it he explains the common law business duty requirement incorporated with the adoption of the Rules of Evidence. “Each participant in the chain which created the record—from the initial observer—reporter to the final entrant—must generally be acting in the course of the regularly conducted business.” Broden also cites to a perfect analogy from the Court of Criminal Appeals in 2004:

“A delusional person might call Crimestoppers to report that George Washington was cutting down a cherry tree on the Capitol grounds. Although Crimestoppers has a business duty to accurately record all incoming calls and to keep the records as part of its business records, the caller had no business to report the duty accurately.”

Garcia v. State, 126 S.W.3d 921, 929 n. 2 (Tex. Crim. App. 2004). To me, this is the better path to plow in cases like this. What duty did the sergeant have until there was a witness problem for the State?

State v. George, No. PD-1233-19 (Tex. Crim. App. 2021)

Issue. When the State alleges conspirator liability in a capital-murder-in-the-course-of-robbery, a conviction is appropriate when murder is a foreseeable result of the planned robbery. Is a defendant entitled to a lesser-included offense instruction on robbery if he can produce some evidence that the initial plan did not include murdering the robbery victim?

Facts. A jury convicted defendant of capital murder based on his participation in a conspiracy to commit a robbery which ultimately resulted in murder. Defendant was a pimp and he conspired with others to rob a man in his hotel room after learning from two of his prostitutes that the victim had thousands of dollars in cash on him. Defendant planned the robbery. He used the prostitutes to distract the victim while he and another large man broke into the room. One or more of the conspirators bound the victim, severely beat him, and left him to die face-down in a pool of his own blood. Two of defendant’s co-conspirators testified that defendant did not participate in the beating and only intended to rob the victim. Defendant requested a lesser-included-offense instruction on robbery. The trial court denied his request. “In upholding the refusal of the lesser-included-offense instruction, the court of appeals appeared to create a bright-line rule applicable to conspirator-liability capital-murder-in-the-course-of-a-robbery cases. It stated that ‘when one decides to steal property from another, he should anticipate he or his co-conspirator might be confronted by that individual and that his co-conspirator might react violently to that confrontation.”

Holding. No. Not here. Entitlement to a lesser-included instruction requires a two-step analysis: (1) is the offense legally a lesser-included, and (2) would the evidence permit a rational jury to find that if the defendant is guilty, he is guilty only of the lesser offense. The question here pertains to the combination of the second prong and the conspiracy statute’s imputed liability for “anticipated results” caused by the participation in the conspiracy. The Court of Appeals’ bright line rule that all co-conspirators must anticipate a murder when they agree to participate in a robbery was wrong. A jury considering conspirator liability in a capital-murder-in-the-course-of-a-robbery case could rationally find a defendant only guilty of a robbery. “For the jury to make such a finding, there had to be evidence refuting or negating the anticipation element for conspirator-liability showing that the defendant should not have anticipated the murder.” Here, defendant attempted to show lack of intent, but that does not address the issue of what he should have anticipated. The witnesses attempted to exonerate the defendant of murder by showing it was not part of the initial plan, but they did not address whether circumstances eventually unfolded such that Appellant intended or could have anticipated a murder. Defendant planned for an altercation in a closely confined space, wore all black with black gloves, brought zip ties, had plans to cut the phone lines, and brought a large man with him as muscle. “Appellant ‘just stood there’ during the beating, the fact that Appellant calmly said and did nothing while [a co-conspirator] viciously beat [the victim] unconscious, bound him with zip ties, and left him face down on the bed in a pool of his own blood suggests that Appellant was not surprised by, and likely approved of, Range’s actions.

Comment. I think this case is a close call. It makes sense that you cannot raise the issue of a lesser-included offense by only showing that the conspirators didn’t initially plan the conspiracy to turn into a murder.

Hall v. State, No. AP-77,062 (Tex. Crim. App. 2021)

Issue. Is Comedian Jeff Ross an agent of the government (when he goes into a jail and starts interviewing inmates for a Comedy Central special)?

Facts. Comedian Jeff Ross hosted a Comedy Central special inside of the Brazos County Jail where Defendant was detained before a jury sentenced him to death. Comedy Central agreed to pay for expenses associated with any need for additional staffing for the event. The jail agreed to host the special as a treat to inmates as consistent with its “Inmate Behavior Management” philosophy. Comedy Central required inmates to sign a release before appearing in the special. The jail promoted the event by posting flyers throughout the facility. During one segment, Ross sat with inmates inside their pod and engaged in conversation. Ross engaged in a 17-minute conversation with defendant in which he mocked his appearance and made jokes about his race. Defendant made remarks showing a lack of remorse for the brutal murder he committed. Upon learning the Ross interview produced useful punishment evidence, the State issued a subpoena and obtained the Comedy Central recording and ultimately presented it at trial. Defendant filed a motion to suppress the recording and his statements under a theory that Ross was acting as a de facto agent of the government in conducting an interview without the presence of counsel.

Holding. No. The Sixth Amendment prohibits the use of a defendant’s own incriminating words if they were elicited deliberately by the government without counsel present after the Sixth Amendment right to counsel has attached. This right is violated even when the government employs an agent to step into the shoes of the government in order to elicit such statements. But here there was no agreement between the State and Ross for Ross “to gather evidence.” The State neither instructed nor encouraged Ross to collect incriminating evidence. Ross was not acting as an agent of the State when he spoke to the Defendant.

Edward v. State, No. PD-0325-20 (Tex. Crim. App. 2021)

Issue. Does sufficient evidence support a family violence conviction when an arresting officer indicates that the non-testifying complainant reported a dating relationship, but the officer’s body camera does not corroborate the officer’s recollection?

Facts. A jury convicted defendant of an elevated third-degree assault family violence offense based on the “dating relationship” he had with the complainant and his prior conviction for the same offense. The complainant declined to testify at trial. The State sponsored the testimony of the investigating officers. One officer testified that the complainant told him that the defendant was her boyfriend when he initially arrived on scene. The officer’s body camera footage did not depict this to be true.  When counsel highlighted this fact in cross examination the investigating officer changed his testimony and indicated that the camera footage did not capture the entire interaction with the complainant.

Holding. Yes. Here it does. Even though the investigating officer initially stated that the complainant told him about the existence of a dating relationship when he initially arrived, when that fact proved to be untrue, the investigating officer became flexible enough in his recollection to sustain this verdict. When confronted about the discrepancy, the investigating officer indicated that he must have received the statement at a different time not depicted on the video. Some circumstantial evidence supports the family violence finding as well: defendant was found in complainant’s bedroom sitting on her bed, the two had been alone together inside her apartment, and the complainant completed a family-violence form provided by the investigating officer.

Comment. The State also sponsored an EMT who testified about family violence from a report prepared by another EMT which may have been based on information provided by yet another person. Why on earth were all these people allowed to testify? What is going on here?

Bell v. State, No. PD-1225-19 (Tex. Crim. App. 2021)

Issue. Is a trial court’s error in explaining the requirement of sequencing of prior felony convictions for purposes of habitual offender enhancement a mere jury-charge error subject to harm analysis?

Facts. A jury found defendant guilty of failure to register as a sex offender. Defendant had two prior felony convictions. The trial court erroneously instructed the jury that they must enhance defendants sentencing range to 25-life if the State proved that Defendant’s second prior felony became final after the commission of the first felony. Penal Code 12.42(d) requires both dates to be measured from the date of finality “a finding that the first conviction became final prior to the commission of the second felony.” Notwithstanding the erroneous jury charge the prosecutor articulated the law correctly in closing “a person commits a felony offense, goes to prison for that offense, gets out, commits a new felony offense, goes to prison for that offense, gets out and commits another, the minimum is 25 years.” The jury found the enhancements true and sentenced defendant to 50 years. The Court of Appeals found that “In the absence of a proper jury finding on the sequencing requirement . . . Appellant’s fifty-year sentence was ‘illegal’ and ‘void’ because it exceeded the maximum punishment allowed for an unenhanced third-degree felony.”

Holding. Yes. “An illegal sentence is distinguishable from a procedural irregularity.” A trial court’s failure to instruct on a sentencing factor or even on an element of the offense does not constitute structural error. It is subject to harm analysis. The evidence submitted to the jury proves the proper sequencing of prior convictions according to the correct law.

Concurrence (Slaughter, J.) To be clear, this case deals with a prior sentence and not some other elemental factor for which the defendant failed to receive jury consideration. When a jury is not asked to consider an elemental factor in sentencing it is constitutional error and subject to constitutional harm analysis under Apprendi. But enhancement by prior sentence is different. It is only subject to regular harm analysis.

Comment. When judicially created harm analysis replaces a jury’s consideration of elemental fact or a sentencing factor, it is simply the court injecting itself into the role of the jury envisioned by our founders.

Avalos v. State, No. PD-0038-21 (Tex. Crim. App. 2021)

Issue. Does the Constitution require an individualized consideration of punishment and thus prohibit an automatic life without parole sentence for an intellectually disabled person?

Facts. A jury convicted defendant of capital murder. The state waived the death penalty which resulted in an automatic sentence of life without parole. Defendant challenged the automatic sentence as unconstitutional as applied to him because he is intellectually disabled.

Holding. No. The court explores Supreme Court precedent in this area and acknowledges a distinction between cases in which a particular punishment was categorically prohibited by the constitution and cases where the constitution merely requires an individualized assessment of mitigating circumstances.

    • Eddings v. Oklahoma: a state cannot automatically impose the death penalty. A jury must consider “the character and record of the individual offender and the circumstances of the particular offense.”
    • Harmelin v. Michigan: the individualized assessment requirement in death penalty cases do not apply to non-death-penalty cases.
    • Miller v. Alabama: an individualized assessment is required before imposition of mandatory life without parole for juvenile offenders. The sentencer must “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”
    • Atikins v. Virginia: death penalty for intellectually disabled offenders is categorically prohibited. They are categorically less culpable than the average criminal. The national legislative trend is to prohibit it. Neither retribution nor deterrence is served.
    • Roper v. Simmons: death penalty categorically banned for juvenile offenders. Supreme Court exercised its own judgment on disproportionality. Juveniles lack maturity and responsibility, are more susceptible to negative influence, and their undeveloped character traits are transitory rather than fixed. A death penalty for a juvenile denies the juvenile an opportunity to “attain a mature understanding of his own humanity.”
    • Graham v. Florida: automatic life without parole for non-homicide juvenile offenders is categorically prohibited. The national legislative trend is to prohibit it. Life without parole neither serves the goals of retribution nor deterrence. “[T]ransience of youth makes questionable any assumption that a juvenile will prove incorrigible.”

Miller (individualized assessment before juvenile life without parole) is different than Atkins, Roper, and Graham which categorically prohibit certain punishments based on objective indicia of society’s attitude. Though people with intellectual disability may have some of the same mitigating characteristics as juveniles (diminished impulse control and greater susceptibility to peer pressure), their characteristics are not transient like those of a juvenile.  Whereas a juvenile offender may mature and become a well-adjusted member of society, an intellectually disabled person will remain intellectually disabled. Even though the intellectually disabled person is categorically less culpable, “[s]ociety has a substantial interest to protect itself from disabled murderers.” Automatic life without parole is justified by a persisting need for incapacitation.

Comment. “It is not inconceivable to us that the Supreme Court might again ultimately say something similar [that individualized assessments are constitutionally required in life without parole cases] with respect to intellectual disability.” I believe this is where the case is headed.

State v. Kahookele, No. PD-0617-20 (Tex. Crim. App. 2021)

Issue. If a state jail felony is aggravated to a third degree, is it subject to further habitual offender enhancements expressly inapplicable to state jail felonies?

Facts. The State charged the defendant in two indictments with the state jail felony offenses of possession of controlled substances. With defendant’s prior murder conviction, the State was able to aggravate that offense to a third-degree (“aggravated state jail felony”) offense pursuant to Penal Code 12.35(c). Then the State enhanced defendant’s range of punishment to a habitual-offender range of 25-99 years or life using two sequential non-state-jail felony convictions. The trial court granted defendant’s motion to quash challenging the legitimacy of the habitual offender enhancement as applied to an offense which began as a state jail felony.

Holding. Yes. Ordinarily a state jail felony cannot be enhanced to a 25-99 sentencing range in the same way as non-state-jail felonies using the habitual offender provisions of the penal code. The State can enhance an ordinary state jail felony in the following ways:

    • to a third-degree felony when the State can show two previous state jail felony convictions.
    • to a second-degree felony when the State can show two previous sequential non-state-jail felony convictions.

Section 12.35 of the penal code defines the sentencing range for state jail felonies. It also provides that a state jail felony may be aggravated to a third-degree by: (1) a deadly weapon, or (2) a previous conviction for enumerated serious offenses. The Penal Code specifically provides under Section 12.425 that an offense so-enhanced may be enhanced again to a second-degree by a prior non-state-jail felony. This is the extent to which the Code specifically provides special enhancement rules for state jail felonies. All non-state-jail felonies are subject to different habitual offender enhancements under the “normal rules.” In particular, as it pertains to this case, two prior sequential felonies will enhance the sentencing range of a non-state-jail felony to 25 to 99 years or life. Here, when a state jail felony is aggravated in the way envisioned by Section 12.35, it becomes a non-state-jail felony and the legislature intended that it be treated as a non-state-jail felony subject to the normal habitual offender rules. The 25 to 99 or life enhancement was appropriate.

State v. Stephens, No. PD-1032-20 (Tex. Crim. App. 2021)

Issue. May the Texas Legislature delegate to the Attorney General—a member of the executive department—the authority to prosecute election-law violations in district and inferior courts?

Facts. Zena Collins Stephens is the elected sheriff of Jefferson County. After her election, the Texas Rangers learned of and investigated potential campaign finance violations. Specifically, they discovered that Stephens misreported cash contributions on her finance report. The Jefferson County District Attorney declined to prosecute and referred the Rangers to the Attorney General. The Attorney General presented the matter to a grand jury in nearby Chambers County and obtained a three-count indictment. Count I charged Stephens with tampering with government record by misreporting cash contributions. Counts II and III charged Stephens with accepting a cash contribution in excess of $100. Stephens filed a motion to quash the indictment and a pretrial writ of habeas corpus. She challenged the constitutionality of Texas Election Code 273.021 which delegates authority to the Attorney General to prosecute criminal offenses “prescribed by the election laws of this state.” She claimed that such a provision violates the separation of powers and only a district attorney—a member of the judicial branch—has this authority. She further argued that such a delegation of authority, if constitutional, does not include the authority to prosecute Count I of the indictment, a Penal Code offense. The trial court granted Stephens’ motion to quash on Count I and denied the pretrial writ of habeas corpus on Counts II and III. The court of appeals reversed the trial court’s granting of Stephens’ motion to quash and upheld the trial court’s denial of Stephens’ writ of habeas corpus.

Holding. No. Only district and county attorneys may represent the State of Texas in a criminal case. Our state constitution “expressly divides the powers of government into three distinct departments—legislative, executive, and judicial—and prohibits the exercise of any power ‘properly attached to either of the others,’ unless that power is grounded in a constitutional provision.” Texas’s separation of powers provision is even more potent than the implied separation under the federal constitution. The Attorney General’s principal argument is that the Texas Constitution grants his office enumerated duties as well as “other duties as may be required by law.” As he argues, the Legislature lawfully created “other duties” by enacting Election Code Section 273.021 and that provision grants him authority to prosecute election law crimes. But the law must conform to Texas’s constitutional separation of powers, these “other duties” must be executive branch duties. “Simply put, the ‘other duties’ clause may not transform the judicial duty of prosecutorial power into an executive duty.” The Attorney General’s authority to act as an attorney in a criminal case is limited to cases where he has been asked for assistance by the local district attorney and deputized.

Dissent (Yeary, J.). Would read the “other duties” clause more broadly—as a “catch-all” and permit the Attorney General to represent the State in a criminal proceeding.

Comment. This is a huge deal. Incredible work by Russell Wilson II and Chad Dunn. I wouldn’t suggest the Attorney General sometimes injects himself into cases for political reasons, but I might be persuaded to share another story. Okay you convinced me. In 2020, he took the wheel from Harris County District Attorney Kim Ogg, who was required to represent the State when dozens of Texas representatives obtained writs of habeas corpus to protect them from the warrants issued by the Speaker of the House to establish a quorum. The matter was before both the Court of Criminal Appeals and the Texas Supreme Court simultaneously to decide the Attorney General’s authority in habeas proceedings before it was rendered moot by the legislators returning to Austin.

Martin v. State, No. PD-1034-20 (Tex. Crim. App. 2021)

Issue. Does unlawful carrying of a weapon by a gang member require proof that the defendant was among the individuals of the identified group (gang) who regularly or continuously committed gang crimes?

Facts. Defendant was riding his motorcycle and wearing a vest which read “Cossacks MC.” An officer stopped him for multiple traffic violations. Defendant admitted he was a member of the Cossacks Motorcycle Club. Defendant also admitted he was carrying a firearm. The officer arrested defendant for carrying a firearm while being a member of a criminal street gang. At trial a special gang officer testified about the TxGANG database in which officers archive the existence of various criminal street gangs and their membership. According to the gang officer, the Cossacks organization was a recognized criminal street gang, and the defendant was a recognized member. Defendant had been entered into the database during previous law enforcement encounters. Evidence showed that defendant was an “enforcer” in the organization and was present at the Twin Peaks Waco shootout. Defendant testified that his Twin Peaks case was dismissed and that he did not participate in violence in that or any other case. He further explained that in Lubbock, where he lived, there were a total of six Cossacks who worked as mechanics and city employees.

Holding. Yes. The Statute makes it unlawful to possess a weapon when that person is a member of a criminal street gang. A criminal street gang is defined as “three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities. The State contends that it is sufficient that some members of the group continuously or regularly associate in the commission of crime and that the State merely show that the defendant is a member of that group. The State’s interpretation would lead to absurd and unconstitutional results. The State’s interpretation “would allow for the conviction of a person who is unaware of the gang’s criminal activities and who has not personally committed a crime or associated in the commission of a crime.” To hold a person liable as a member of a street gang because some members of the organization with which the person becomes a member associate in criminal activity violates the First Amendment. To avoid this, the statute is more logically read to require the defendant to be one of the individuals among the members who actually engages in criminal activity. “Though not a criminal for purposes of carrying a firearm, Appellant became one simply by riding his motorcycle and wearing his cut.”

Concurrence (Yeary, J.). Is not sure that the State’s interpretation makes the statute unconstitutional, but the Court’s rejection of the State’s interpretation is necessary to avoid unconstitutionality.

Comment. Think of how this would work if the State were correct. By their interpretation of the definition, all the following are criminal street gangs: Republicans, Democrats, members of professional sports teams, police officers, lawyers, doctors, and accountants. It would even require “the application of the term ‘criminal street gang’ to members of the Boy Scouts of America,” as Judge McClure explains.

1st District Houston

Rivera v. State, No. 01-20-00062-CR (Tex. App.—Houston [1st Dist], 2021)

Issue. When a trial court excuses a juror after the parties exercise their strikes and challenges but before the jury is sworn, is the trial court required to permit the parties to reconsider their peremptory strikes?

Facts. During jury selection the trial court excused various jurors for financial inconvenience and work conflicts. After removing jurors with adequate excuses, the trial court granted challenges for cause. A potential pool of jurors remained upon which the parties exercised peremptory challenges. As the trial court called the names of jurors selected, it became apparent that the trial court failed to excuse one of the selected jurors based on her stated grounds for inconvenience. The trial court excused the juror and effectively expanded the group of potential jurors by one. Defendant requested the opportunity to redo peremptory challenges because he had not previously factored in potential service of the newly added member to the jury which resulted from the trial court excusing the service of an otherwise selected jury member. The trial court denied defendant’s request and the new unexpected member of the jury was seated.

Holding. No. The defendant effectively argues “That he should have been allowed a do-over because the trial court had altered the pool of potential jurors by one after both sides had already made their peremptory challenges.” Defendant argues he would have used a peremptory to exclude the one additional potential juror added to the jury pool. “[N]o statute or rule addresses this scenario.” But this case can be resolved by reference to the consent of the parties in excusing the juror who the trial court failed to excuse before peremptory challenges were exercised. “[Expansion of the pool of jurors by one] was the natural consequence of the parties’ consent.” The defendant did not have to consent to the excusal of this juror. Moreover, the juror selected was among three jurors considered as an alternate juror. Neither side struck the newly selected juror as an alternate juror. This juror “had been qualified and accepted by the parties as an alternate.”

2nd District Fort Worth

State v. Wood, No. 02-19-00460-CR (Tex. App.—Ft. Worth, Nov. 10, 2021)

Issue. Texas’s felon in possession of a firearm statute prohibits firearm possession within five years of: (1) release from felony confinement, (2) release from felony probation, or (3) release from parole. Is a defendant entitled to an acquittal due to the variance which occurs when the State alleges one option but proves another?

Facts. The State charged the defendant with felon in possession of a firearm. Their theory was that the defendant possessed firearms during a period in which he was prohibited as a felon: within five years of his release from confinement. The State did not prove the release of confinement date at trial. They showed that he was convicted in 2006 and sentenced to 30 years confinement, that he was on parole at the time law enforcement found guns in his home, and that his parole would not end until 2036. Despite the trial court’s instruction to the jury to convict only if they found that the defendant possessed firearms within five years of his release from confinement the jury found him guilty. 

Holding. Yes. “[W]hen a statute lists more than one method of committing an offense or more than one definition of an element of an offense, and the indictment alleges some, but not all, of the statutorily listed methods or definitions, the State is limited to the methods and definitions alleged in the indictment.” Sufficiency of the evidence is weighed against a hypothetically correct jury charge (not the one given or even the indictment itself). Not all factual allegations in the indictment need be considered as part of the hypothetically correct jury charge—only material ones (those which proof of alternative facts would give rise to a material variance). “As relevant here, variances involving statutorily enumerated elements are always material, and the corresponding indictment allegations always bind the State.” Here, the statute permits the State to convict an individual if they possess a firearm within five years of: (1) release from felony confinement, (2) release from felony probation, or (3) release from parole . . . “whichever date is later.” If the State alleges one of these options, it cannot sustain a conviction by proof of another. In this case the State alleged defendant possessed a firearm within five years of release from confinement but proved he possessed a firearm within five years of release from parole. This is a material variance, and the defendant is entitled to an acquittal.

Comment. I agree with this outcome. I think the Court of Criminal Appeals would, too. I don’t see a PDR filed by the State, so I think it’s safe to play devil’s advocate for a minute. What if Penal Code § 46.04 does not create three distinct units of time-based prosecution, but rather a single time-based element based on a calculation that produces the latest date? I feel gross, now. 

Serrano v. State, No. 02-20-00014-CR (Tex. App.—Ft. Worth, Nov. 18, 2021)

Issue. (1) Is fleeing a lesser included of evading with a motor vehicle? (2) Does harmless but nonetheless reckless and dangerous driving provide sufficient evidence to sustain a deadly weapon finding in an evading arrest prosecution?

Facts. Defendant committed a traffic violation after leaving a drug house. Officers chased him without their headlights on and without activating their overhead emergency lights. Defendant fled. Eventually, when defendant reached the highway, officers turned on their overhead lights to formally conduct a traffic stop. Defendant did not pull over. Despite other motorists on the roadway and at least one pedestrian, defendant drove at a high rate of speed, drove recklessly, and drove in oncoming lanes of traffic. The chase spanned six miles of highways and residential streets. The State charged defendant with third-degree evading arrest, enhanced as a habitual offender.

Holding. (1) No. entitlement to a lesser-included offense instruction is a two-step process: (1) is the offense legally a lesser-included offense (does the lesser offense has elements included in those needed to prove greater offense), and (2) is there some evidence sufficient for a jury to find a defendant guilty only of the lesser offense? Here, the State would have to prove additional facts to obtain a conviction for fleeing; namely, that the officer was driving a police vehicle, that the officer was in uniform, and that the officer was giving a visual or audible signal to stop. “Because fleeing requires proof of elements that evading does not, fleeing is not a lesser-included offense of evading.” (2) Yes. In an evading arrest prosecution, a motor vehicle constitutes a deadly weapon when the manner of use presents an “actual danger” of causing death or serious bodily injury. However, “[t]he evading arrest statute does not require pursuing officers or other motorists to be in a zone of danger, take evasive action, or require the appellant to intentionally strike another vehicle to justify a deadly weapon finding.” Citing Drichas v. State, 175 S.W.3d 795 (Tex. Crim. App. 2005). Defendant relies heavily on body camera footage for his argument, but this footage shows cars having to slow down and stop to avoid collision. It also shows the defendant run stop signs and red lights with traffic nearby. This evidence was sufficient to sustain a deadly weapon finding. 

Comment. The court indicated that defendant was enhanced once by a deadly weapon finding and a second time as a habitual offender (presumably two prior felony convictions). A deadly weapon finding only “enhances” a state jail felony (for other offenses it constitutes an affirmative finding impacting things such as parole eligibility). In the same legislative session, the House and the Senate passed amendments to the evading arrest statute. The House made the offense a state jail felony. The Senate made the offense a third-degree felony. The Governor signed the Senate bill last. Courts have consistently applied a legal equivalent of the LIFO inventory method to find that the Senate bill controls. In August 2021 the Court of Criminal Appeals declined to hear a challenge to this statutory chaos under the doctrine of lenity (tie goes to the confused defendant). Here, the fleeing statute cannot be a lesser-included offense because it requires proof of additional facts not required in an evading prosecution, namely that the officer attempting to stop the defendant was inside a police vehicle when attempting to effectuate the stop.

Massey v. State, No. 02-20-00140 (Tex. App.—Fort Worth, 2021)

Issue. (1) When a defendant complies with an officer’s instruction to “just go ahead and turn around, I’m going to pat you down,” does his compliance constitute consent? (2) When that defendant, mid-pat-down, struggles and resists, has he disrupted the causal connection between the unlawful frisk and the ultimate discovery of evidence on his person?

Facts. An officer encountered defendant at a closed gas station. During the encounter, the officer turned the defendant around to conduct a pat down. The defendant sort of complied initially but when the officer went for his right pocket, a struggle ensued. The officer eventually won the struggle and discovered methamphetamine. Defendant moved to suppress this evidence. He argued that the officer did not have reasonable suspicion to believe he was “armed and dangerous, as is required to justify a protective frisk.” The trial court found: (1) the officer did not have reasonable suspicion to frisk the defendant, but (2) the frisk was justified by the defendant’s consent when he complied with orders to turn around and submit to a frisk, and (3) the defendant’s own actions in improperly resisting disrupted the causal connection between the frisk and the discovery of methamphetamine.

Holding. (1) No. The trial court found that the officer’s frisk was not justified by reasonable suspicion. “This determination is well supported by the record.” The defendant was nervous and in an area where there had been drug arrests – this does not amount to reasonable suspicion that the defendant was armed and dangerous. Although consent can be shown nonverbally through an act of submission, where an officer issues a command, compliance is not the same as consent. Here the officer issued a command: “just go ahead and turn around, I’m going to pat you down just for my safety.” The defendant’s brief compliance was “acquiescence to an assertion of lawful authority.” This is illustrated clearly when considering what happened next: defendant tried to pull away and a struggle ensued which resulted in the officer tasing the defendant and arresting him. “A struggle is not a hallmark of genuine consent to search.” (2) No. Evidence lacking a causal connection to illegal police conduct is “attenuated” and should not be suppressed despite the police infraction. In considering the doctrine of attenuation “we ask whether granting the establishment of the primary illegality, the evidence . . . has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” The courts are not in agreement on the impact of a subsequent criminal offense committed after an illegal search or seizure. But “if the crime is petty and relatively predictable as a product of unlawful detention or search, the evidence revealed is better viewed as an extended derivation of the illegal police action.” Here, the defendant’s resisting and evading was a result of the illegal frisk, they were petty offenses derived from the officer’s unconstitutional search. 

Comment. The trial court found that resisting an unlawful frisk was an intervening circumstance, but also the fact that he didn’t resist the unlawful frisk initially amounted to consent. This was a bit of a “heads I win, tails you lose” analysis.

Sopko v. State, No. 02-20-00162-CR (Tex. App.—Fort Worth, 2021)

Issue. Does Article 39.14 of the Code of Criminal Procedure require the State to produce evidence relevant to the underlying criminal offense in the context of a probation revocation proceeding?

Facts. The trial court placed the defendant on probation for assault family violence and retaliation in 2019. Prior to doing so defendant received discovery from the State. Defendant violated probation five months later and the State filed a motion to revoke his probation. The trial court appointed a new revocation attorney who filed a discovery motion requesting a video of the assault and a copy of the complainant’s written statement. The State declined to produce this evidence and the trial court denied the defendant’s motion. The trial court held a hearing on the State’s motion to revoke and the State called the complainant as a witness. When the complainant could not remember aspects of the underlying criminal offense, the State used the very witness statement they secreted from the defense to refresh the recollection of the witness. The trial court granted the State’s motion to revoke probation and sentenced the defendant to seven years.

Holding. Dodged the question with harmless error. The State is required, upon a request, to produce all evidence material to the proceeding. Tex. Code Crim. Proc. art. 39.14. The failure to do so is subject to harm analysis on appeal. Assuming a violation of 39.14 occurred here, there was no harm. The defendant was not harmed because the State provided the defendant discovery when he initially pleaded guilty. The State actually exceeded its duties under Article 39.14 by providing the defendant electronic duplicates of documents instead of merely permitting him to come to their office and make his own copies (editorial note: sarcastic slow clap). The defendant was not harmed because it also appears that revocation counsel was aware that the video he sought “went viral” on social media and he was aware of its contents. Finally, the defendant was not harmed by the trial court’s denial of the motion to compel discovery because Article 39.14 does not require a court order – the State’s duty is triggered upon a request by the defendant, a trial court’s refusal to enforce Article 39.14 in the face of a recalcitrant prosecutor cannot be harmful.

Comment. Article 39.14 absolutely entitles the defendant to discovery pertinent to the criminal offense in a revocation hearing. There is no need to assume it without deciding. I’m reasonably confident the Court of Criminal Appeals would enforce the prosecutor’s duty instead of applauding their obstinance like the Second Court does here. But let’s pick this apart a bit further.

The court of appeals unfairly imputes the previous attorney’s receipt of discovery to Sopko. “It is undisputed that the State produced to Sopko all discovery materials required by Article 39.14 before he pleaded guilty . . .” Well, this is where it gits a bit tricky. Sopko didn’t get his discovery. TDCAA fought hard to make sure the Sopkos of the world never actually receive the discovery after the State provides discovery to a defendant’s attorney. In fact, most prosecutors make defense lawyers sign a condescending declaration that they have not violated this rule before submitting a plea recommendation to the trial court. What if the previous attorney has a file destruction policy and no longer has a copy? What if the previous attorney is a bum and won’t provide it? Rather than making a point of what Sopko “received” maybe we just don’t let the State play the “I have something you don’t have” game. The State also makes an argument that defense counsel’s request for discovery did not specifically invoke Article 39.14 of the Code of Criminal Procedure, which is a very Michael-Scott-declaring-bankruptcy understanding of the law.

A few constructive thoughts now that my rant is over. The Second Court is right to the extent they indicate that there is no need to obtain a trial court order. Seeking a trial court order is certainly an option, at least in places that are not the Second District. But there are other remedies available. These remedies begin with the appropriate groundwork though: e-file and e-serve an initial demand letter; follow the initial demand letter with an e-filed and e-served demand specifying what the State has failed to provide. If the State continues to hide evidence, the options for the defense include: (1) a trial court order to compel, (2) a motion to exclude State’s evidence, (3) a mandamus directed at the district attorney.

3rd District Austin

State v. Serna, No. 03-20-00087-CR (Tex. App.—Austin, Nov. 17, 2021)

Issue. (1) May a frequent overnight guest claim Fourth Amendment protection in a carport located within a home’s curtilage? (2) Is that overnight guest’s expectation of privacy diminished by his status as a parolee?

Facts. Officers had a warrant to arrest the defendant. They acquired an address at which defendant “frequently stayed.” When officers approached the home and they saw defendant sitting in the driver’s seat of a parked car beneath a carport abutting the home. Defendant was blocked in by cars parked behind him. The carport shared a roof with the home and was within a few steps of the front door. Officers confronted the defendant when he exited the car. Defendant locked the car and created a diversion so he could hide the keys inside the home. Officers removed him from the home and arrested him. After the defendant was placed in handcuffs, officers approached defendant’s car to conduct a plain view through-the-window search. They discovered the firearm which formed the basis of defendant’s instant felon in possession of a firearm prosecution. The trial court granted the defendant’s motion to suppress, and the State appealed.

Holding. “The area immediately surrounding and associated with the home—its curtilage—is part of the home itself for Fourth Amendment purposes.” Citing Florida v. Jardines, 569 U.S. 1, 6 (2013). Officers may seize evidence they discover in plain view when they are lawfully present where the object is plainly viewed. And officers may conduct a warrantless search of a vehicle under automobile exception when probable cause exists and the vehicle is readily mobile. But when the vehicle is parked within the curtilage of a home, the officer must obtain a warrant or other justification to search and seize evidence. (1) Yes. A person may claim Fourth Amendment protection in a place where he is an overnight guest even when he has no dominion, control, or right to exclude others. This extends to the curtilage of the home and persists as long as the host grants permission to the guest to be present. (2) Maybe but not here. Parolees can lose Fourth Amendment rights and have a diminished expectation of privacy in their homes. But cases of warrantless or suspicion-less searches of parolees all involve an explicit waiver of privacy rights by the parolee as a condition of parole. Here the State did not prove the existence of such a waiver.

Comment. The State’s final argument is an interesting one—one which might distinguish this case from future fact patterns. There is nothing special about the vehicle in this case. The defendant’s parking of the vehicle in curtilage essentially makes the vehicle part of the home for Fourth Amendment purposes. But officers may be present inside of a home without a search warrant or consent when there is sufficient evidence supporting the belief that the individual they are seeking to arrest pursuant to an arrest warrant is inside. Once inside the home, armed with an arrest warrant only, officers may seize evidence and contraband in plain view. Had officers walked past the vehicle on their way to effectuate the arrest and saw the firearm at that time, this case could have gone differently. But it was not until after officers had already taken the defendant into custody that they started looking around the vehicle.

Daniel v. State, No. 03-20-00519-CR (Tex. App.—Austin, 2021)

Issue. Does a person commit a traffic infraction by drifting from his or her lane of travel without jeopardizing the safety of any person?

Facts. The State charged defendant with driving while intoxicated and the defendant challenged the constitutionality of the traffic stop leading to his arrest. The arresting officer stopped the defendant after completing a left turn at an intersection with two designated left-turn lanes. When the defendant made his left turn, he crossed the dotted line designating the curvature of the lane through the intersection. The officer testified at the hearing on defendant’s motion to suppress that there were no other vehicles near defendant’s when he purportedly failed to maintain a single lane of traffic.

Holding. No. Texas Transportation Code 545.060(a) requires that an operator: (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 done safely. It is the concurrence of both of these elements which constitutes a criminal offense. A person does not commit a criminal offense by drifting from his or her lane without a showing that such drifting was unsafe. This has been the law in the Third District (as well as two others) for decades. See Hernandez v. State, 983 S.W.2d 867 (Tex. App.—Austin 1998, pet. ref’d). A four-judge plurality of the Court of Criminal Appeals attempted to reject this construction of the Transportation Code in 2016. But plurality opinions are not binding precedent. [D]riving is an exercise in controlled weaving. It is difficult enough to keep a straight path on the many dips, rises, and other undulations built into our roadways.” Citing State v. Cortez, 543 S.W.3d 198, 206 (Tex. Crim. App. 2018).

Dissent (Goodwin, J.). Given the plurality decision of the Court of Criminal Appeals rejecting this court’s analysis here, the officer’s conduct was an objectively reasonable mistake of law. This Court should reconsider its position en banc and the Court of Criminal Appeals ultimately decide the correct interpretation of the Transportation Code.

4th District San Antonio

The Fourth District Court of Appeals in San Antonio did not hand down any significant or published opinions since the last Significant Decisions Report.

5th District Dallas

The Fifth District Court of Appeals in Dallas did not hand down any significant or published opinions since the last Significant Decisions Report.

6th District Texarkana

The Sixth District Court of Appeals in Texarkana did not hand down any significant or published opinions since the last Significant Decisions Report.

7th District Amarillo

Clark v. State, No. 07-21-00116-CR (Tex. App.—Amarillo, 2021)

Issue. Is fingerprint evidence sufficient to establish the identity of an arsonist who sort of admits to being present in the home where he has no permission to be?

Facts. A jury convicted the defendant of arson of a habitation. Nobody saw who set the fire, but defendant’s fingerprint was on a Hawaiian Punch bottle that smelled like gasoline. Defendant called his wife from jail and stated he “didn’t go in there without no gloves on.” Defendant’s wife’s sister was dating the same man as the homeowner-victim. 

Holding. Yes. Fingerprint evidence, by itself, is probably not sufficient evidence to establish guilt of a crime. But where the State can add some circumstantial evidence, there is no sufficiency problem. Sufficient supporting evidence can include a showing of no other legitimate reason for the defendant’s prints to be on the discovered object or no permission to be in the place where the discovered object was found. The State showed both of these things at trial and showed that the statements defendant made seemed to be an admission.

Comment. I would have been looking for a little guy with a weird red hat and a history of sucker punching people. I’ve shared this comment with a test audience, and nobody gets it. But I do. So, it stays.

8th District El Paso

The Eighth District Court of Appeals in El Paso did not hand down any significant or published opinions since the last Significant Decisions Report.

9th District Beaumont

The Ninth District Court of Appeals in Beaumont did not hand down any significant or published opinions since the last Significant Decisions Report.

10th District Waco

Brown v. State, No. 10-19-00254-CR (Tex. Crim. App.—Waco, Nov. 10, 2021)

Issue. Can the State convict a defendant of both occlusion (strangulation) assault and bodily-injury assault for injuries inflicted in the same criminal episode?

Facts. Defendant punched his girlfriend in the face, strangled or choked her on three separate occasions, threw her into a nightstand, kicked her in the stomach, pulled her hair, slammed her to the floor, burned her with a cigarette, and slammed her head into the wall. These separate attacks took place over the course of several hours. A jury convicted defendant of occlusion assault (strangulation) and misdemeanor assault by causing bodily injury.

Holding. Yes. Double jeopardy protection is inapplicable when distinct offenses occur during the same transaction. Double jeopardy does prohibit conviction on both a lesser and greater included offense. In Ortiz v. State the Court of Criminal Appeals held that bodily-injury assault is not a lesser-included offense of occlusion assault when the disputed element is the injury. 623 S.W.3d 804 (Tex. Crim. App. 2021). Occlusion (strangulation) assault and bodily-injury assault are both result-oriented or result-of-conduct offenses. “[A] defendant may be held criminally responsible for two or more result-of-conduct offenses, even if they occur during the same transaction, so long as each offense causes a different type of result.”

11th District Eastland

Robertson v. State, No. 11-19-00343-CR (Tex. App.—Eastland, 2021)

Issue. When actual ownership of a vehicle is unclear, is it reasonable for officers to conduct a consent search when that consent is provided by a registered owner who had not possessed the vehicle for several months?

Facts. After parking his truck and noticing officers trying to get his attention, defendant took off running. While fleeing officers, defendant threw a small bag on the ground. Officers eventually arrested defendant and noted he looked and behaved like a person who was under the influence of methamphetamine. Officers seized the bag defendant threw on the ground and impounded his vehicle. The bag contained methamphetamine residue. Officers later learned that the vehicle driven by the defendant was registered to defendant’s friend. Officers wished to open a locked toolbox attached in the bed of the pickup. They invited defendant’s friend to the impound lot and obtained consent to remove the lock and open the toolbox. Defendant’s friend told officers that he had given the vehicle to the defendant to use, that he had not been in possession of the vehicle for several months, that he was not the person who attached the toolbox to the truck, and that he did not have a key. Officers removed the lock from the toolbox and discovered methamphetamine and paraphernalia.

Holding. Yes. When an officer reasonably, but mistakenly, believes a third party has actual authority to give consent to search, a search is not invalid when it is later shown that the third party lacked actual authority. Even though the record presents uncertainty as to whether defendant’s friend remained the actual owner of the vehicle at the time he consented to a search of the attached toolbox, the record did establish that he was the registered owner. These circumstances presented the searching officer with a reasonable basis to conclude that the friend had apparent authority to consent. In addition to being the registered owner of the vehicle, the friend contacted the police agency daily with inquiries on how to retrieve the vehicle. By law, the registered owner is the person who is entitled to retrieve a vehicle from an impound lot.

Comment. Defendant also raised a sufficiency of the evidence challenge asserting the State failed to establish affirmative links to drugs found days later in a locked toolbox. The court sets out fourteen different scenarios which have constituted affirmative links in other cases. This is a good blueprint for arguing or deciding whether to argue affirmative links in drug possession cases.

12th District Tyler

The Twelfth District Court of Appeals in Tyler did not hand down any significant or published opinions since the last Significant Decisions Report.

13th District Corpus Christi/Edinburg

State v. Torres, No. 13-20-00101-CR (Tex. App.—Corpus Christi-Edinburg, 2021)

Issue. Texas Family Code § 51.09 gives a magistrate the option of ordering officers to immediately return a recording of a juvenile interrogation for a determination of voluntariness. When officers fail to follow this return-and-review procedure are the statements provided by the juvenile defendant inadmissible?

Facts. Officers arrested defendant for murder. On the date of his arrest defendant was 16 years old. A justice of the peace provided Miranda warnings to the accused and indicated in writing that officers were required to return a recording of defendants recorded interview so he could determine whether statements were provided voluntarily. This admonition was in accordance with Texas Family Code § 51.09. The justice of the peace waited at the police station from 12:23 AM until 4:00 AM but a recording was never returned. At the time of the hearing on defendant’s motion to suppress, the justice of the peace still had not reviewed the recording.

Holding. Yes. Texas Family Code § 51.09 provides that a child between 10 and 17 may waive any constitutional rights only under certain conditions. One way a child may waive Miranda rights under Section 51.09 is by a waiver after warnings are provided by a magistrate directly. When electing to secure a waiver of rights through this method, the magistrate may request officers to return the child after the interview and make a post-interview determination of voluntariness after reviewing the recorded interrogation. When a magistrate invokes this optional procedure, strict compliance is required, and failure renders the child’s statement inadmissible. Here, the magistrate invoked the return-and-review procedure and waited all night for officers to comply. They didn’t. And the state may not avail itself to other provisions of the Code which might otherwise show the child’s statement admissible once the return-and-review procedure is invoked. “We note that this could lead to an unjust result, in that an incriminating statement which is voluntarily made—and thus passes constitutional muster—may nevertheless be excluded due only to the magistrate’s invocation of the specific procedure set forth in the statute. Such a result, while required by the statute’s language, would not advance the purposes of the statute. We urge the Legislature to amend the statute to reflect that a statement will be admissible if it is adjudged at any point to be voluntarily made . . .”

14th District Houston

Ex parte Fairchild-Porche, No. 14-19-00445-CR (Tex. App.—Houston [14th Dist], Nov. 16, 2021)

Issue. Does the 2017 version of Texas’s revenge porn statute violate the First Amendment?

Facts. The State charged the defendant with unlawful disclosure of intimate visual material (“revenge porn”) and the defendant filed an application for pre-trial habeas corpus relief challenging the facial validity of the statute under the First Amendment. The State narrowed its allegations under the revenge porn statute to disclosure of photographs depicting the complainant with his genitals exposed which defendant obtained under circumstances where complainant had a reasonable expectation that the photographs would remain private. The indictment further alleged that the disclosure harmed complainant because the defendant disclosed the photographs to his co-workers and said photographs revealed complainant’s identity by depicting his face.

Holding. A statute targeting the content of speech is presumed invalid unless the State can show that the statute is narrowly tailored to serve a compelling government interest. The court may assist the State in discharging this burden by giving the statute a narrowing construction to avoid constitutional violation—but only when a narrowing construction comports with normal rules of statutory construction. In a similar case the Twelfth Court of Appeals found the revenge porn statute unconstitutional (see comment below). This case is distinguishable. Here the defendant obtained the photograph under circumstances where the depicted person had a reasonable expectation of privacy and the defendant herself revealed the identity of the depicted person rather than a third party revealing it. What ultimately cures this dispute is a construction of the statute which produces what the legislature intended when it created a statute targeting for criminal prosecution obscene pornography rather than non-obscene pornography. The statute must be read to include a requirement that the defendant acted knowingly or recklessly with regard to the depicted person’s expectation of privacy. Furthermore, the statute must be read to include a requirement that the defendant acted knowingly or recklessly in revealing the identity of the depicted person.

Concurrence (Spain, J.). We followed the Court of Criminal Appeals’ unpublished non-precedential opinion in Jones and then we published it. Why should this Court do the Court of Criminal Appeals’ job for them?

While dutifully stating that it is not relying on the authority of the unpublished per curiam opinion of the court of criminal appeals in Ex parte Jones, this court nonetheless follows the high court’s opinion. See Ex parte Jones, No. PD-0552-18, 2021 WL 2126172 (Tex. Crim. App. May 26, 2021) (per curiam) (unpublished); see Tex. R. App. P. 77.3 (“Unpublished opinions have no precedential value and must not be cited as authority by counsel or by a court.”) (emphasis added). And who can legitimately blame this court when the high court writes 43 pages that effectively rewrite Penal Code section 21.16(b) to avoid constitutional infirmities created by another department of government, then takes no long-term responsibility for the rationale that supports the high court’s judgment? The courts of appeals have no choice but to take responsibility for our opinions.

* * *

We pretty much know what the court of criminal appeals will do if we do not follow the unpublished Jones opinion, but I decline to participate in making Jones precedent through the back door. We do not have to publish . . .

Comment. I began this comment before reading Justice Spain’s concurrence and realized what I had to say was what Justice Spain said (but with less pizazz). So, I leave you with this comment: Justice Spain is right.

Ex parte Contreras, No. 14-20-00397-CR (Tex. App.—Houston [14th Dist], Nov. 16, 2021)

Issue. When counsel demonstrates unfamiliarity with the discovery and his client’s proficiency in the English language, does manifest necessity exist to declare a mistrial such that double jeopardy does not bar retrial?

Facts. The State charged the defendant with assault-family-violence. At trial defense counsel demonstrated his lack of familiarity with his client and the discovery in the following ways: (1) he released an interpreter not knowing his client’s English was insufficient to proceed with trial, (2) he indicated that he had not received discovery from the State, (3) he indicated that he had received discovery but had not reviewed it all, (4) he indicated that he received and reviewed all of the discovery but several months ago and could not remember basics facts contained therein, (5) he indicated a need to recall a witness for cross examination on facts contained in a non-existent witness statement. On the second day of trial the court, sua sponte, declared a mistrial claiming that defense counsel was “not prepared for trial” and “not able to provide effective assistance of counsel to complete this matter at this time.” Defense counsel objected to the declaration of mistrial. Before retrial defendant filed a “motion for writ of habeas corpus” challenging the second trial on double jeopardy grounds.

Holding. Yes. Jeopardy attaches in a jury trial once a jury is impaneled and sworn. “Accordingly, the premature termination of a criminal prosecution via the declaration of a mistrial—if it is against the defendant’s wishes—ordinarily bars further prosecution for the same offense.” This ordinary rule is inapplicable to cases where extraordinary circumstances present a “manifest necessity” to grant a mistrial. “[M]anifest necessity exists where the circumstances render it impossible to reach a fair verdict, where it is impossible to proceed with trial, or where the verdict would be automatically reversed on appeal because of trial error.” The State has the burden to show manifest necessity and to disprove the existence of alternative courses of action less drastic than the declaration of mistrial. The facts establish that counsel was unfamiliar with his client and the basic facts of the case. This falls below a reasonable standard of effective assistance of counsel under Strickland. Moreover, it appeared to the trial court that the jury had become frustrated with counsel during the proceedings in a manner that may have prejudiced his client.

Dissent (Christopher, C.J.) The majority “imposes a standard that many lawyers could not meet, and fails to engage in a meaningful analysis of prejudice”

Comment. Chief Justice Christopher’s dissent reflects a stereotype of criminal lawyers, and it is unfortunate. There’s surely a lot going on behind the scenes that we don’t know about, and Justice Christopher points some of those things out. I’m loath to jump to conclusions about an attorney’s performance from an appellate opinion – but that counsel didn’t know anything about the discovery is at least a basic premise of the majority and dissent. The implication of the dissenting opinion is that this is good enough for criminal defense and we shouldn’t expect much more from lowly defense attorneys who struggle to live up to the meager expectations of Strickland. No. We should. We should be expected to have basic familiarity with the information contained in discovery which persists through the day of trial.

Crowell v. State, No. 14-20-00017-CR (Tex. App.—Houston [14th Dist], Nov. 18, 2021)

Issue. (1) When the state moves an inmate from the local jail to a prison during the period for filing a motion for new trial, has the state denied effective assistance of counsel? (2) Can an appellate court modify multiple judgments when a trial court attempts to stack several sentences but erroneously sandwiches a non-stackable offense between several other stackable offenses? (3) Can a trial court stack a 1997 sexual assault of a child sentence with other more recent stackable offenses?

Facts. The State charged the defendant with three counts of aggravated sexual assault of a child under 14, sexual performance by a child under 14, and possession with intent to promote child pornography. Defendant entered a guilty plea, and the trial court conducted a punishment hearing without an agreed punishment recommendation (“open plea”). The trial court sentenced the defendant to 295 years by cumulating sentences.

Holding. (1) Question avoided “As a prerequisite to obtaining a hearing on a motion for new trial, the motion must be supported by an affidavit, either of the accused or someone else specifically showing the truth of the grounds of attack.” Conclusory allegations and sworn statements will not suffice. Here the defendant contends that providing a sworn statement for counsel to file became impossible when the State prematurely moved him to a prison. But counsel’s representation of this fact in the motion was conclusory and did not explain why some person other than the defendant could not have executed an affidavit. (2) Yes. The version of the stacking-eligibility statute applicable to defendant’s offenses did not permit stacking of possession of child pornography. The trial court attempted to stack all of defendant’s sentences, it did so by sandwiching defendant’s child pornography sentence between his other stackable sentences. (3) No. In 1997 sexual assault of a child was not a stackable offense by the nature of the offense alone. To stack this 1997 offense the state had to meet two requirements either: (1) they did not prosecute the offense in the same criminal action, or (2) it did not arise out of the same criminal episode. Because “same criminal episode” has no temporal limitation, it was not shown that defendant’s 1997 sexual assault of a child met this requirement.

Ex parte Temple, No. 14-20-00156-CR (Tex. App.—Houston [14th Dist], Nov. 23, 2021)

Issue. Before 2005 the Code of Criminal Procedure required that a mistrial declared during the punishment phase of trial result in retrial starting from the guilt-innocence phase of trial. When a defendant committed an offense before 2005 but is prosecuted after 2005 and a trial court declares a punishment phase mistrial must the trial court apply the law applicable on the date the defendant committed the offense and grant a new trial on both guilt-innocence and punishment?

Facts. In 2007 a jury convicted the defendant for murdering his wife in 1999. Defendant’s conviction and life sentence were reversed, and a new jury convicted him in 2019. After the jury delivered its guilt-innocence verdict, the trial court dismissed two of the four alternate jurors. During punishment deliberations the jury sent a note to the trial court indicating that two of the jurors refused to participate in deliberations. Defense counsel requested a supplemental instruction and opportunity for additional argument from the parties. The State objected and suggested the two jurors might be considered “disabled” for purposes of jury service. The trial court read to the jury an Allen charge and instructed them to go reach a verdict on punishment. The jury eventually sent a note back to the trial court telling the judge to declare a mistrial because “we believe it is a total fluke, a one and a thousand chance that this group of jurors was assembled . . . two jurors are not willing to budge at all. The trial court declared a mistrial. Defendant a writ of habeas corpus challenging the ex post facto application of the 2005 limited punishment retrial upon punishment mistrial statute. The trial court denied relief.  The state filed a “motion to exclude exonerating or residual doubt evidence at punishment.”

Holding. Issue dodged. Defendant’s challenge to the amended Code of Criminal Procedure’s limited retrial provision is an as-applied challenge to the statute’s constitutionality. Unless you are the Governor and accused of a crime, you cannot raise an as-applied challenge through pre-trial writ of habeas corpus. Ex parte Perry, 483 S.W.3d 884, 895 (Tex. Crim. App. 2016) (yes that’s actually law). Defendant argues that it would be unfair in light of the trial court granting the State’s motion to exclude “residual doubt” evidence for a new jury to issue a determination on punishment – but the trial court can still reverse its decision after seeing what evidence the defendant might wish to present.

Comment. What the heck is a “motion to exclude exonerating or residual doubt evidence?” It sounds like “don’t talk about how bad our case was to the new jury who doesn’t know how bad it was.” When a jury is asked to render a verdict on guilt and a verdict on punishment, they are not supposed to barter with one another and trade concessions on one verdict in exchange for another. But they do. And that they do is not only well-known but a protected part of the process. United States v. Powell, 469 U.S. 57 (1984). To have a new jury deliberate on a punishment that a previous jury saddled it with delivering but without hearing the weight of the State’s evidence is problematic.

Null v. State, No. 14-19-00839-CR (Tex. App.—Houston [14th Dist], 2021)(en banc)

Issue. Under Texas Rule of Evidence 702, may a lab analyst testify about the results of lab testing performed offsite when that lab analyst has knowledge of existing protocols at the off-site laboratory and can assume or deduce without personal knowledge that those protocols were followed? (2) Can a court take judicial notice that DNA evidence is widely accepted?

Facts. This is an en banc rehearing from a case appearing in the August edition of the Significant Decision Report. The facts are copied from the previous summary. The issues above are narrowed to those decided differently by the en banc court. Complainant was 16 years old when she came home in a confused state and told her mother she had been raped while out jogging. Later complainant revealed that the jogging story was a lie. Instead, her story was that she skipped school, got drunk, hung out with an adult friend, got more drunk, tried to walk home, passed out, found herself in a car with a man “pressing on top of her.” Toxicology reports showed complainant had Xanax and marijuana in her system. Forensic evidence showed that Defendant could not be excluded as a suspect. At trial, complainant testified that she did not know the defendant, had never seen him before, and could not identify him as the attacker.

Holding. (1) No. Under Texas Rule of Evidence 702, the proponent of scientific evidence must, among other things, show by clear and convincing evidence that a reliable scientific technique was properly applied on the occasion in question. Here, an offsite laboratory developed DNA profiles by extracting DNA, quantification of DNA, amplification of DNA, and graphing of DNA. The testifying expert did not supervise any of these steps and did not have personal knowledge that the testing was done properly. Sometimes a DNA analyst who does not personally perform relevant work may nonetheless establish scientific reliability in lab testing results. But such a witness must impart some personal knowledge that protocols were actually followed. The testifying analyst here was not able to state who performed the work at the off-site laboratory, whether the off-site laboratory actually followed the proper testing process, or whether the off-site laboratory had properly calibrated their instruments or stored their specimens. Moreover, the testifying analyst merely confirmed the accuracy of conclusions rendered by another analyst. “While the testifying expert can rely upon information from a non-testifying analyst, the testifying expert cannot act as a surrogate to introduce that information.” (2) No. At least it cannot do so without notifying the parties and allowing argument from the evidentiary opponent. To uphold a conviction because a trial court could have taken judicial notice denies a defendant the opportunity to challenge the information upon which the trial court would purportedly rely to take such judicial notice. This would constitute a violation of due process. 

Dissent (Christopher, C.J.). “The standard for en banc consideration has not been met.” A lab analyst is not required to have personal knowledge as to whether a reliable technique was followed. It is sufficient that the analyst reviews the results of the work and be able to deduce that protocols were followed. To the extent that the testifying expert operated as a surrogate, it would present a Confrontation Clause issue, not a Rule 702 issue. Defendant waived any complaint under the Confrontation Clause by not objecting on that basis.

Comment. I’m surprised the 702 issue is where the en banc court reached disagreement with the panel. Defendant also raised legitimate issues with the sufficiency of evidence pertaining to penetration and venue. The panel’s rejection of those arguments is undisturbed in this opinion on reconsideration.

Kyle Therrian
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.

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.

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