September 2021 SDR – Voice for the Defense Vol. 50, No. 7

Voice for the Defense Volume 50, No. 7 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

Long time no see SDR fans! We got a lot of important questions answered in this month’s issue, like is there a difference between bail and bond? The Court of Criminal Appeals picked apart some Governor Abbott’s GA-13 Executive Order prohibiting automatic release for pre-indictment delay. And the Martinez holding that a DWI blood draw constitutes two searches has an interesting new twist pertaining to statutory time limits on warrant execution. The Fifth District didn’t love the issue, but I do.

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. Cases are hyperlinked and can be accessed by clicking on the case name on the online edition.

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

Borden v. United States, 141 S.Ct. 1817 (2021)

Issue. The Armed Career Criminal Act (ACCA) mandates a 15-year minimum sentence in cases of illegally possessing a gun when a defendant has three or more prior convictions for a “violent felony.” Is a criminal offense a “violent felony” if it requires a mens rea of recklessness.

Facts. The defendant pleaded guilty to a felon-in-possession charge. The Court enhanced his sentence under the ACCA. One of the predicate offenses relied on by the government was a reckless assault.

Holding. No. “An offense qualifies as a violent felony . . . if it has an element the use, attempted use, or threatened use of physical force against the person of another.” One of the keys to this conclusion is the requirement that the force must be used “against the person.” This suggests a higher degree of conduct. It “demands that the perpetrator direct his action at, or target, another individual.” Recklessness does not satisfy this requirement. Nor do reckless offenders rise to the level of culpability the legislature intended to target.

Concurrence (Thomas, J.). The key phrase here is not “against the person of another” but rather “use of physical force” which has an accepted mens rea of intentional or knowing. The ACCA has an additional clause that would include an offense that “involves conduct that presents a serious potential risk of physical injury to another.” But we erroneously found that clause to be unconstitutionally vague in Johnson v. United States, 576 U.S. 591 (2015).

Dissent (Kavanaugh, J.). See comment below – Justice Kagan pretty well summarizes it for us.

Comment. Justice Kagan throwin’ down: “In a nutshell, the dissent’s ‘term of art’ theory goes as follows: Congress took an umbrella term (“offenses against the person”) used to organize a broad set of crimes (some not even conceivably ACCA predicates); plucked out three words (“against the person”); appended them to a statutory phrase (“use of physical force”) with which they are not often associated; put the combination into a substantive criminal statute—all to signify, contra Leocal, a term of art indifferent to mens rea. No wonder the dissent is the first to make the argument. It fails at every turn.

Lange v. California, 141 S.Ct. 2011 (2021)

Issue. Does an officer always have exigent circumstances to enter a home without a warrant when pursuing a fleeing misdemeanant? 

Facts. A police officer entered the defendant’s garage after the defendant committed traffic infractions and, rather than stop when the police officer tried to pull him over, drove a short distance and pulled into his attached garage. The police officer ultimately arrested the defendant for driving while intoxicated. The state appellate court found that categorically that an officer has exigent circumstances to enter a home without a warrant if he is pursuing a fleeing misdemeanor offender.

Holding. No. Not always. An officer may enter a home without a warrant when the exigencies of the situation create “a compelling need for official action and no time to secure a warrant.” The exigent circumstance doctrine requires a case-by-case assessment. In previous cases, the court has found exigent circumstances to include: (1) the need to prevent imminent injury, (2) the need to prevent destruction of evidence, and (3) the need to prevent the suspect’s escape. In United States v. Santana, 427 U.S. 38 (2002) the court indicated a retreating felony suspect could “not defeat an arrest” that had “been set in motion in a public place.” Whether this is a categorical approach in all fleeing-felon cases is unresolved, but its rationale is not a perfect fit for fleeing misdemeanants. Misdemeanor offenses come in all shapes and sizes. Minor offenses do not constitute emergencies sufficient to justify warrantless entry. Minor offenses plus flight may rise to the level, but not always.

Comment. Misdemeanant is a fun word I am going to use now. It actually makes me wonder, should it be Missy Misdemeanant Elliot instead of Missy Misdemeanor Elliot. These are the contributions I give you to ponder.

Texas Court of Criminal Appeals

Pugh v. State, No. PD-0546-20 (Tex. Crim. App. 2021)

Issue. In a conversation where a defendant provided some information voluntarily and some information in response to un-mirandized custodial interrogation, was it improper to evaluate the harm of the inadmissible statements without regard to the admissible statement, and without regard to subsequently discovered physical evidence?

Facts. Defendant had a warrant. An officer looking to execute that warrant located the defendant, conducted surveillance, conducted a traffic stop, and arrested the defendant. During the transport to the police station and without the benefit of Miranda warnings the following conversation occurred:



APPELLANT: I’m going to be honest, sir; I got stuff in the car, man.

OFFICER LOPEZ: What do you got in the car?

APPELLANT: I got drugs in the car, and I got a small handgun.

Officers later searched defendant’s car and found heroin and a gun. The prosecution referenced this conversation in closing as proof of the defendant’s knowledge. The court of appeals reversed, finding the statements to be the product of un-mirandized interrogation and the heroin to be fruits of an un-mirandized interrogation.

Holding. Yes. There is no fruit of the poisonous tree doctrine for un-Mirandized statements leading to physical evidence. “A statement taken in violation of Miranda must be suppressed at trial, but other evidence subsequently obtained as a result of that statement need not be suppressed.” The court of appeals was incorrect to conclude that the physical evidence discovered in the car was inadmissible as fruits of un-Mirandized statements. The court of appeals was also incorrect to treat the defendant’s initial volunteered statement of “I got stuff in the car” as inadmissible when conducting a harm analysis. A proper harm analysis would have considered the statement “I got stuff in the car” together with the subsequently discovered contraband. These two pieces of evidence are sufficient to render the follow-up clarification of “I got drugs in the car, and I got a small handgun” of little value since officers properly discovered that for themselves.

Concurrence (Walker, J., joined by Newell J.). “[O]nce Appellant volunteered that he had ‘stuff in the car,’ police had probable cause to search the Impala independent of the subsequent unlawful question by Officer Lopez. . . . It does not take a legal technician to understand that Appellant was conveying that he had illegal items in the vehicle when he volunteered that he had ‘stuff in the car.’”

Comment. If you want a third point of view, I’m not 100% convinced a what-do-you-mean-type question in response to unsolicited voluntary statements rises to the level of custodial interrogation.

Ex parte Gomez, No. PD-0724-20 (Tex. Crim. App. 2021)

Issue. A trial court can require new bond when that bond is insufficient. In this context (1) is there a distinction between “bail” (as an amount set by the court) and “bond” (the value posted by the accused)? (2) Must a trial court cite a “good and sufficient cause” before finding bond insufficient (must that cause be based on changed circumstances)?

Facts. Defendant is alleged to have entered a home and strangled the complainant in her sleep. A magistrate set his bail at $25,000 for burglary and $15,000 for assault by impeding breathing. Defendant posted surety bonds in both cases. The same morning, the trial judge set new bail at $75,000 on each charge. Defendant filed a writ of habeas corpus seeking reinstatement of the original bonds. The trial court denied habeas relief and cited as authority Texas Code of Criminal Procedure Article 17.09 Section 3 (“[defendant shall not be required to give new bond unless] bond is defective, excessive or insufficient…or for any other good cause.”). The court of appeals distinguished between the concept of bail (the amount set by the court) and bond (the amount posted by the accused). In doing so, the court of appeals found that bond was not insufficient because it was posted in an adequate amount to satisfy the amount of bail. The court further found that absent changed circumstances, there exists no “other good cause” to increase bail.

Holding. (1) No. “Bail” and “bond” mean the same thing. The court of appeals was incorrect to draw a distinction and declare that bond is only insufficient when it fails to equal the amount set as bail. The court of appeals correctly cites several places throughout Article 17 supportive of this theory, but there are numerous other places throughout Article 17 where the legislature used  “bail” and “bond” interchangeably. (2) No. The insufficiency of the bond, itself, is a good and sufficient cause. Article 17.09 permits bond revoked if the original bond “is defective, excessive or insufficient . . . or for any other good and sufficient cause.” “The final clause is a catch-all, granting the trial court discretion to revoke bond for reasons not enumerated in the statute.” Moreover, Texas Government Code Section § 54.856 governing jail magistrate determinations in certain counties specifically permits the “court in which the complaint, information, or indictment is filed to review or alter the decision of the criminal law hearing officer.”

Concurrence (Yeary, J. and Slaughter, J.) no opinion.

Comment. This scenario in the future should be attacked on two fronts: (1) Texas Rule of Evidence 101(e)(3)(C) requires the application of the Rules of Evidence in proceedings to deny, revoke, or increase bail, and (2) procedural due process challenges rules mandating notice, hearing and opportunity to be heard. Combined, these rules should require non-hearsay witness testimony.

Johnson v. State, No. PD-0553-20 (Tex. Crim. App. 2021)

Issue. (1) Was it appropriate for the court of appeals to consider facts contained in an exhibit extrinsic to the official appellate record when concluding counsel rendered ineffective assistance by failing to admit said exhibit? (2) Is an attorney ineffective for attempting to admit admissible evidence and failing?

Facts. Defendant is a person who appears to have serious mental health issues. He broke into an occupied vehicle and drove off while a passenger remained inside. While doing this, he brandished a screwdriver and made the passenger feel threatened. Defendant testified at trial that he believed the truck was his because he had abandoned a similar truck in another city. Between the time he abandoned his vehicle and when he believed he discovered it again, defendant was admitted to and broke out of a hospital for psychiatric evaluation. He then hitchhiked to his parents who saw him behaving erratically. He rubbed grass on himself in the yard, he laid on railroad tracks, he walked down the freeway licking guardrails. Defendant’s stepfather testified that defendant had suffered from “schizophrenia or something” in the past. Defense counsel attempted to introduce medical records without a sponsoring witness or proper predicate. The trial court excluded the records. Counsel did not make an offer of proof. The court of appeals held “there was no plausible, professional reason for the failure of Johnson’s trial counsel to properly prepare and offer Appellant’s medical records into evidence in admissible form” and reversed defendant’s conviction. 

Holding. (1) No. “Appellant’s medical records were not filed with the trial court, nor were they part of an offer of proof or a formal bill of exceptions, and there was no motion for new trial where the records were made an exhibit. It is unclear how the court of appeals obtained these records, but it was improper to consider them.” The court’s use of these records to determine deficient performance and harm under the Strickland standard was improper (2) No. Counsel may have had a good reason attempting but failing to admit 1000 medical records. There is no evidence in the record pertaining to counsel’s rationale. “Counsel gets the benefit of the doubt” on direct appeal with a silent record. Without an opportunity to explain why he chose not to secure a sponsoring witness or lay the proper predicate for medical records, there is insufficient evidence to conclude counsel’s performance was deficient.

Comment. I don’t agree the record is insufficient to find deficient performance. Counsel decided these medical records were important enough to offer into evidence but did not do the work to get them admitted. The court suggested a hypothetical where counsel wanted the jury to see the State object to immaterial medical records– but this seems somewhat far-fetched.

Tilghman v. State, No. PD-0676-19 (Tex. Crim. App. 2021)

Issue. Does a hotel guest lose his reasonable expectation of privacy in a hotel room when hotel staff determines the guest has violated hotel policies which are not stated in a rental agreement or explicitly communicated to the guest?

Facts. A hotel manager smelled marijuana coming from Defendant’s room, so he took affirmative steps to evict him. For safety, he called the police for assistance. When the defendant and his guests would not open the door, officers entered without a warrant. Officers discovered marijuana and methamphetamine in plain view. The trial court concluded defendant lacked a reasonable expectation of privacy in the hotel room due to the hotel’s decision to evict him. The court of appeals reversed, finding “without advanced notice of eviction, Appellant maintained a reasonable expectation of privacy . . .” In reaching this conclusion the court of appeals focused on the absence of eviction policies communicated to the defendant and the failure to slide notice of eviction under defendant’s door.

Holding. “Appellant’s expectation of privacy in the hotel room was extinguished once the hotel staff took affirmative steps to evict him on suspicion that he was using illegal drugs in his room in violation of hotel policy.” Police were authorized to enter the room to facilitate the eviction. It is well established precedent that a hotel guest loses his expectation of privacy when their occupancy is scheduled to end or upon eviction. The novel question presented in this case is “[a]t what point, under Texas law, does a person lose his reasonable expectation of privacy in a hotel room if the hotel decides to evict him for violating hotel policy. Our answer is that such loss of privacy interest occurs as soon as the hotel takes affirmative steps to repossess the room.” Actual notice of policies or the attempted eviction is immaterial to this analysis as Texas law does not require actual notice for a hotel to evict a guest. The police may step into the shoes of the hotel to effectuate the eviction.

Comment. But what if you hang the do not disturb sign on the door?

State v. Mata, No. PD-0810-19 (Tex. Crim. App. 2021)

Issue. Does the New York v. Quarles public safety exception to the Miranda requirement apply to interrogations about the location of a kidnapped child?

Facts. Defendant kidnapped a child and held her for ransom. Police quickly tracked him down. While in custody, without providing him with Miranda warnings, police asked the defendant where he was keeping the child. The defendant led police to the child while under arrest.

Holding. Yes. The court of appeals improperly narrowed the Quarles exception to scenarios involving guns—a fact central to the Quarles fact pattern. “But everything the Supreme Court said in Quarles applies with at least as much force to the kidnapping of a child.” The social value of rescuing a child outweighs the social value in enforcing the prophylactic rule which deters police misconduct in custodial interrogation. And “[t]he possibility that warnings will deter a suspect from giving information leading to the rescue of a child is not worth the societal cost.”

Concurrence (Walker, J.) The Quarles public safety exception is not “categorical” and “does not turn on whether there is a missing gun, whether there is a kidnapping, or whether public safety can be generally pointed to. Instead, the exception applies when the Miranda warnings themselves can cause more harm than good: when the warnings themselves implicate public safety.”

Comment. I don’t like curtailing longstanding Fourth Amendment precedent, but if someone were holding my family member for ransom, I would beg the police not to give Miranda warnings. I think this case is right.

Wexler v. State, No. PD-0241-20 (Tex. Crim. App., 2021)

Issue. Would a reasonable person believe they are under arrest when ordered out of their home on a loudspeaker, placed in the back of a police car, then accused of knowing where drugs are inside of their home?

Facts. Houston police conducted a raid at a home. 25 officers surrounded the home, blocked off access with an armored vehicle, and ordered the occupants to exit using a loudspeaker. Once the occupants complied, the officers encountered the defendant. An interrogating officer believed defendant was involved in the drug dealing which formed the basis of the search warrant officers were then executing. Without telling defendant she was a suspect, the interrogating officer placed the defendant in the back of a patrol car and told her “We have a search warrant. Tell me where the narcotics are. It will save us some time doing the search. We’re going to find it no matter what.” Defendant complied and told the interrogating officer where to find 25 grams of methamphetamine, marijuana packaged for sale, drug paraphernalia, guns, and ammo. At trial the defendant objected to the introduction of her statements to the interrogating officer given without the benefit of Miranda warnings or those required by Texas Code of Criminal Procedure Article 38.23. The trial court overruled defendant’s objection and the jury convicted. The court of appeals concluded that the defendant was only temporarily detained and affirmed the trial court’s determination that Miranda and Article 38.22 were inapplicable.

Holding. No. The warning requirements of Miranda and Article 38.22 are triggered by custodial interrogation. They serve as a prerequisite to admissibility only when the defendant satisfies an initial showing that she was under arrest when responding to interrogation. The relevant inquiry in determining Miranda/38.22 custody is “whether, [objectively] under the circumstances, a reasonable person would have believed that her freedom of movement was restricted to the degree associated with a formal arrest.” The restriction upon freedom of movement must be more than that associated with a mere investigative detention. Here, the detention was brief, the investigation was efficient, defendant was not removed from the scene nor was she told she could not leave. No evidence shows defendant was aware of the overwhelming police presence which may have given rise to a subjective belief of arrest. 

Dissent (Walker, J.). “I cannot agree [with the majority]. Police commanded her to come out of the residence, placed her in the back of a police car, and told her they were going to find drugs and just tell the police where the drugs were. . .  Appellant was in custody.”

Comment. The court distinguishes State v. Ortiz, 382 S.W.3d 367 (Tex. Crim. App. 2012). In part the court pointed to the fact that the court had been provided with body camera footage of the entire encounter in Ortiz such that it could conclude defendant was aware of circumstances giving rise an arrest. It is frustrating to see here the absence of a body camera cut against the defendant. I think Walker has it right – notwithstanding the evidence the majority believes the defendant did not prove, there should be enough to find an arrest occurred here.

Ex parte Lanclos, No. PD-0243-21 (Tex. Crim. App. 2021)

Issue. Article 17.151 of the Code of Criminal Procedure requires a court to release a defendant after certain periods of pre-indictment delay either: (1) on a personal bond, or (2) a bond he can afford. Does the Governor Abbott’s GA-13 order suspending Article 17.151 “to the extent necessary to prevent any person’s automatic release on personal bond . . .” prohibit a court from fulfilling its duty to instead reduce bond to an amount the defendant can afford?

Facts. After 90 days of pretrial detention without indictment, defendant filed a writ of habeas corpus pursuant to Texas Code of Criminal Procedure Article 17.151 (mandating release of inmates held without formal charge after certain periods of delay). He sought a reduced bond he could afford. The trial court declined to grant a personal recognizance bond or reduce defendant’s bond to an amount he could afford. The court of appeals affirmed the trial court’s denial of relief, citing defendant’s failure to present any evidence of a bond amount he could afford.

Holding. “Article 17.151 is mandatory; if the State is not ready for trial within 90 days of the beginning of the defendant’s detention, the defendant accused of a felony must be released on personal bond or by reducing the bail amount. Without an indictment, the State cannot be ready for trial under Article 17.151. Under those circumstances, the judge has only two options: either release the accused on personal bond or reduce the required bail amount. If the court chooses to reduce the amount of bail required, it must reduce it to an amount that the record reflects the accused can make.” The State’s argument that the Governor has suspended Article 17.151 is only partially correct. The Governor’s GA-13 Executive order provides: “Article 17.151 . . . is hereby suspended to the extent necessary to prevent any person’s automatic release on personal bond because the State is not ready for trial.” This language suspends the release of defendants on personal bond, but not release on bonds they can afford. The State’s arguments that statutory exceptions to release under Article 17.151 are unsupported by the record. 

Dissent (Yeary, J.). To secure his release for pre-indictment delay under Article 17.151 the accused has the burden to show the trial court a bail amount he could afford.

Comment. The court acknowledges the Executive Order GA-13 (suspension of 17.151) workaround recognized in the previous SDR summary of Ex parte Montes. No. 04-20-00337-CR (Tex. App. San Antonio, Feb. 17, 2021)(not designated for publication). Without saying so, it appears the court places the burden on the trial judge to inquire and ascertain the amount of bond the defendant could post to secure release.

Anderson v. State, No. PD-0279-20 (Tex. Crim. App. 2021)

Issue. Does a pro se incarcerated defendant perfect an appeal by placing his notice of appeal in the mailbox within the deadline to perfect appeal, but omits the words “district clerk” on his mailing?

Facts. Defendant mailed his notice of appeal within the statutory deadline to file notice of appeal. He addressed the mailing to the trial court: to “Dallas County Court #265.” The clerk later received this mailing and filed it a couple weeks after the notice of appeal deadline.

Holding. No.

Dissent (Yeary, J.). Historically a pleading addressed to the proper trial court has been construed as a pleading addressed to the proper clerk. The filing should have been deemed filed on mail receipt within 10 days after the deadline (mailbox rule) or the moment he turned the filing over to prison authorities (prisoner mailbox rule).

Dissent (Walker, J.). Regardless of how an envelope is addressed, if it contains a filing, it is deemed filed in the appropriate clerk’s office the moment it arrived in the custody of the jail or prison. The envelope was better addressed than in other cases where the Court has found an attempt to file sufficient.

Comment. I think the tie should go to the indigent, lawyerless, pro se, incarcerated, inmate trying to perfect an appeal without the help of anyone. I am disheartened by technocratic opinions like this which deny access to the court to an individual who is trying his best without a lawyer.

Herron v. State, No. PD-0853-19 (Tex. Crim. App. 2021)

Issue. When a parolee sex-offender is released from prison and obligates himself to residing county X in pre-release paperwork, does the parolee commit the offense of failure to register as a sex offender in county X when he never physically arrives in that county?

Facts. The defendant was released from prison and ordered to check into a halfway house in El Paso County. Because his offense required registration as a sex offender, Defendant signed forms on his release acknowledging his obligation to register with local law enforcement in El Paso County. At a Greyhound station, and while prison officials were obtaining a bus ticket for him, the Defendant absconded. He never reported to the halfway house in El Paso County. He never registered with a local law enforcement agency in El Paso County. He was later apprehended in Aransas County. At trial nobody could testify where the Defendant actually lived during his period of absconsion. The trial court convicted. The court of appeals reversed and rendered a judgment of acquittal on the State’s failure to sufficiently prove with which of the possible law enforcement agencies with jurisdiction over the halfway house the Defendant was required to register.

Holding. No. “The registration requirement of Chapter 62 is violated only when an individual resides or intends to reside in a particular location . . . . Because it was uncontested that Appellant never physically arrived in El Paso during the relevant time period, he could not have violated an obligation to register there.” The fact that the obligation is triggered after a specified period following the person’s arrival in the jurisdiction indicates that the person’s physical presence in the jurisdiction is required. As it pertains to parolees taking up residence upon release from prison, Article 62 “contemplates situations in which the individual does not move to his expected residence after release.” This supports the conclusion that a parolee does not commit an offense in the county where he announced he would reside when he fails to physically appear in that jurisdiction.

Comment. The Court makes very clear that the defendant should be prosecuted in Aransas County.

Ex parte Sanchez, No. PD-1039-20 (Tex. Crim. App. 2021)

Issue. May a court of appeals, when considering the appeal of an Article 11.072 writ, review evidence de novo when the trial judge hearing the writ did not preside at the trial which resulted in the complained-of conviction?

Facts. Defendant was convicted of failing to stop and render aid when he purportedly collided with a police vehicle involved in a police chase of an unrelated motorist. Defendant contended that he swerved to avoid another vehicle that darted in front of him. The question at trial was whether the defendant actually collided with the police vehicle and whether the defendant was aware the collision occurred. Defense counsel at trial did not call the passengers in defendant’s vehicle as witnesses, but on habeas, their affidavits were presented. Each indicated that defendant swerved to avoid a car that darted in front of him, and none were aware of a collision. The trial court rejected this evidence and denied habeas relief. The court of appeals reversed, applying a de novo standard of review. In the view of the court of appeals, de novo review was appropriate because the habeas judge was not the same judge who heard the trial of the underlying criminal cause and thus “not in an appreciably better position than the reviewing court to resolve the matter.”

Holding. No. “Unlike Article 11.07 cases where [the Court of Criminal Appeals] is the ultimate finder of fact, in Article 11.072 cases, the trial court is the sole finder of fact, and the reviewing court acts only as an appellate court.”

Comment. There are places where the implementation of common law rules pertaining to standard of review and error preservation become untethered from the principles underpinning their implementation. This seems to be one of them. Deferential standards of review derive from the presumption that the trial judge was in a better position to review and evaluate evidence. That simply is not true here.

1st District Houston

Chaves v. State, No. 01-19-00524-CR (Tex. App.—Houston [1st Dist.], Jun. 3, 2021)

Issue. Must a trial court grant a mistrial when the clerk discloses she skipped over a venire member when calling off “the first twelve names on the lists?” to sit on the jury?

Facts. After the State and the Defendant made challenges for cause and exercised their peremptories, the trial court called twelve members of the venire to sit on the jury. The trial court asked whether either side had objections to the jury and both responded they did not. The next day, before swearing in the jury, the trial court informed the parties that the clerk of the court had skipped over an individual who had not been struck by either party. This resulted in the trial court seating the wrong juror—one not among the first twelve unstruck veniremembers. The trial court denied defendant’s motion for mistrial.

Holding. No. Article 35.26(a) requires the clerk to call the first 12 names on the venire list who have not been struck for cause or removed by a peremptory challenge. However, the clerk’s clerical error in skipping over one of these jurors and seating the 13th juror still complied with the “spirit and intent” of Article 35.26(a). The “spirit and intent” analysis is consistent with other intermediate courts addressing the same issue. The use of “shall” in defining the clerk’s duty as “shall . . . call off the first twelve names . . .” isn’t a hard “shall.” Also, defendant cannot show harm in the seating of the improper juror. The juror who the trial court sat was within the zone of potential jurors who could have been seated and the defendant did not exercise a peremptory strike on this juror. The court can only deduce from this that the defendant would have found this juror acceptable but for the fact that this juror was erroneously called by the clerk.

Comment. This is a tough analysis. I agree with the but for analysis of the court: but for learning the fact that this juror was wrongfully counted among the first twelve the defendant wouldn’t have a complaint. But it isn’t like the defendant tried to sandbag everyone by waiting until trial wasn’t going well for him. He raised his complaint the moment he learned about it and before the jury was sworn.

Ex parte Mora, No. 01-17-00661-CR (Tex. App.—Houston [1st Dist. Jul. 27, 2021)

Issue. Can a court of appeals rely on an unpublished opinion of the Court of Criminal Appeals holding that the 2017 version of Texas’s revenge porn statute does not violate the First Amendment.

Facts. Defendant was charged under the 2017 version of Texas’s revenge porn statute. He moved to quash the indictment and filed an application for writ of habeas corpus challenging the statute facially under the First Amendment. The trial court granted both.

Holding. Yes. Sort of. Last month the Court of Criminal Appeals held the 2017 version of the Texas revenge porn statute was not facially violative of the First Amendment. Ex parte Jones, No. PD-0552-18 (Tex. Crim. App. 2021). The Jones court grafted some additional mens rea requirements onto the statute to its unconstitutional interpretation. Rule 77.3 of the Texas Rules of Appellate Procedure prohibit relying on Jones as precedent because it is unpublished. However, this rule is not consistently followed and the Court of Criminal Appeals itself has once held that unpublished opinions can be cited to demonstrate how the court “interpreted and applied constitutional law. Alford v. State, 358 S.W.3d 647 (Tex. Crim. App. 2012). Accordingly, this court adopts the reasoning in Jones in this case with indistinguishable facts.

Comment. “The rules of procedure prohibit us from relying on the Court’s unpublished opinion in deciding this appeal. Thus, our dilemma: what is a court of appeals to do when the Court of Criminal Appeals has spoken on an issue but effectively forbids us from repeating what it said?” I have a solution, rule for the defendant and force them to speak on it again.

Monjaras v. State, No. 01-19-00608-CR (Tex. App.—Houston [1st Dist. Jul. 27, 2021)

Issue. Is a defendant detained when officers greet him, ask to search his bag, pat him down, and ask him questions?

Facts. Officers encountered the defendant while patrolling an apartment complex they describe as a high crime area. When the defendant saw officers, he immediately looked down. The officers turned around to observe defendant again and he had disappeared.  Eventually the same officers encountered defendant a second time. These officers parked their vehicle without activating emergency lights or blocking defendant’s path. They greeted defendant with “good morning. How you doing, sir?” Appellant spoke freely with the officers. Officers made several requests of the defendant: for identification he could not produce, for use of his fingerprints in their fingerprint identification device, for consent to search him and his backpack. The officers’ language and tone of voice did not indicate mandatory compliance with their requests. Defendant consented to a pat down search and a search of his backpack. At first, the officer conducting the search did not discover a firearm, but when he discovered bullets in defendant’s backpack he patted defendant down again. This officer discovered a gun and a fight ensued. 

Holding. No. Officers did not draw their weapons, speak in a tone indicating mandatory compliance with requests, their posture and where they chose to stand were not oppressive. A pat down and a search of a backpack does not convert a voluntary encounter into an investigative detention.

Dissent (Goodman, J.). After the first search this became a detention. When the defendant started emptying his pockets for officers, their requests became commands and instructions which were repeated multiple times when the defendant did not comply with their “requests.” Officers instructed the defendant to place his hands in front of his body and eventually escalated to making physical contact with him. 

Comment. Both officers swear they would not have chased the defendant if after their consensual encounter he decided to take off running. They would have just watched him run away. I would be committing perjury if I stated under oath I believe that. 

2nd District Fort Worth

Fuller v. State, No. 02-20-00101-CR (Tex. App.—Ft. Worth, Jun. 3, 2021)

Issue. When the State causes 34 months of delay waiting on DNA testing and a defendant asserts speedy trial rights but ultimately acquiesces in trial resets, is a defendant’s right to speedy trial denied?

Facts. This is a substitute opinion from a case appearing in the May 2021 edition of the Significant Decisions Report. Defendant was convicted by a jury of capital murder. The facts at trial showed the defendant and co-defendant entered the home of the victim in the evening of October 9, 2016, shot and killed the homeowner and a guest, then returned the next day, seemingly to clean up the scene. A car chase ensued following the defendant’s flight from the victim’s home on the second day and the defendant was captured. On him was a firearm matching the caliber of the bullets used to kill the victims and $4,000 in cash. After his arrest, the defendant made several inculpatory statements on jail phone calls during the pendency of his case. The case then proceeded as follows:

    • December 2016 – indicted
    • December 2016 – State and defendant announced ready for trial
    • November 2017 – potentially favorable defense witness died
    • May 2018 – first trial setting (without objection from defendant)
    • March 2018 – State discovered untested DNA and requests continuance
    • Unknown – second trial setting
    • November 2018 – defendant demanded then withdrew speedy trial demand
    • February 2019 – third trial setting
    • February 2019 – DNA testing incomplete State and defendant announced not ready
    • March 2019 – defendant reasserted his desire for speedy trial
    • March 2019 – State represented DNA testing will be complete by July 2019
    • October 2019 – fourth trial setting
    • July 2019 – State represented DNA testing would be complete by August 2019
    • October 2019 – defendant requests continuance based on newly provided evidence
    • March 2020 – fifth trial setting
    • February 2020 – defendant urged motion to dismiss for speedy trial violation

Holding. No. Speedy trial claims are analyzed using the Barker v. Wingo factors: (1) length of delay, (2) reason for delay, (3) defendant’s assertion of the right, and (4) prejudice. 407 U.S. 514. Here, 34 months of delay is more than sufficient to trigger consideration of the remining Barker factors. The three years of delay awaiting laboratory results from DNA testing was unreasonable, but it was the result of negligence, not deliberate conduct.  Both the delay and the reason for delay weigh against the State. However, the remaining factors weigh against the defendant. The defendant did not firmly insist on a speedy trial until a month prior to his trial. He agreed to or failed to object to trial resets during the pendency of the case. Prejudice is lacking, too. This case involves “compelling evidence of Fuller’s guilt.” Neither the death of a witness prior to the defendant’s assertion of his speedy trial right nor an isolated memory lapse by the investigating detective change this.

Comment. This is a thorough and straightforward application of the Barker factors. However, I maintain my previous comment. There are two elements to the reason for delay here: (1) the laboratory backlog, and (2) the prosecutorial decision to wait for the laboratory results. The backlog is not the prosecutor’s fault—it is not deliberate—but the decision to wait on (and make the defendant wait on) lab results is, by definition, deliberate. In some cases it may be excusable based on necessity, but the court here drives home the point how unnecessary those lab results were based on the “compelling evidence of Fuller’s guilt.”

Kingsbury v. State, No. 02-19-00239-CR (Tex. App.—Fort Worth, Jun. 10, 2021)

Issue. (1) Can a domestic violence expert testify to the behaviors of domestic violence victims, generally, as an explanation for why the specific victim in a case recanted on the witness stand?

Facts. Defendant threatened to kill his pregnant girlfriend while brandishing knives in his hands. At trial the victim testified that there was not an assault and that there was instead a mutual struggle. So, the State sponsored a “domestic violence expert” to impeach the victim and explain how battered women think and behave. In the punishment phase, the trial court admitted evidence of prior convictions. Because the prior conviction evidence arose from a probation revocation, that evidence contained references to other inadmissible evidence of unadjudicated offenses which triggered the revocation. The State redacted references to the inadmissible offenses. The defendant objected to their admission as redacted.

Holding. (1) Yes. Three conditions must be met before expert testimony is admissible under Rule 702: (1) the expert must be qualified, (2) the evidence must be reliable, and (3) the evidence must be relevant. The behavior of domestic abuse victims is a soft science. Here, the expert was well-qualified both in education and in experience. Soft science reliability is measured by the legitimacy of the claimed scientific field and whether the testimony is tailored to and guided by principles pertaining to that field. Here the expert met the soft science reliability standard—she testified about the generally accepted principles of the cycle of violence and power-and-control wheel. Given the evidence presented regarding a specific history of abuse, the recanting of the victim on the witness stand, and the unlikelihood that the jury would have familiarity with how domestic violence victims behave, the trial court did not err in finding that the behaviors the expert has seen exhibited by other domestic violence victims would be helpful to the jury in this case.

Evans v. State, No. 02-20-00097-CR (Tex. Crim. App.—Ft. Worth, Jul. 15, 2021)

Issue. (1) To obtain post-conviction DNA testing under Chapter 64 of the Code of Criminal Procedure, a defendant must show that the requested DNA testing would produce exculpatory results. Can the defendant satisfy this burden by merely pointing to issues with the laboratory maintaining proper chain of custody? (2) Statutorily, an inmate may make a declaration in lieu of providing an affidavit when required to do so by statute. Is a declaration that omits an affirmation of truth “under the penalty of perjury” a sufficient declaration?

Facts. Defendant was convicted of capital murder and sentenced to life. Defendant’s theory at trial was that two other individuals committed the murder using all of the instrumentalities of the offense the State sought to link to him. Those items were tested for DNA which linked them back to the victim in the case. After his trial, the Fort Worth Police Department learned that two gun cartridges collected as evidence had been inadvertently swapped and mispackaged. The defendant seized on this error as a basis for his Chapter 64 motion for post-conviction DNA testing. He claimed it as a basis to believe that proper DNA testing would exonerate him.

Holding. (1) No. One of the requirements for entitlement to post-conviction DNA testing is that ‘the trial court must find that the item’s chain of custody was sufficiently reliable to establish that the item has not been tampered with.” The foundation of the defendant’s request is that the mishap involving mispackaging should lead the court to believe that the chain of custody was so bad that it produced unreliable results. (2) No. Another requirement is that the movant accompany a request for post-conviction DNA testing with an affidavit confirming the truth of the assertions contained in the motion. “Generally, an inmate may use a declaration in lieu of an affidavit . . .” The defendant included an unsworn declaration but “did not include ‘the only phrase that the Legislature actually mandates should be included in such declarations: that the declaration was 
‘under penalty of perjury.’” This technical failure on the part of the defendant was a sufficient basis for the trial court to deny the defendant’s requested relief.

3rd District Austin

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

4th District San Antonio

In re Garcia, No. 04-21-00142-CR (Tex. App.—San Antonio, Jun. 16, 2021)

Issue. Does a trial judge have a ministerial duty to rule on a post-trial discovery motion more than a decade after conviction?

Facts. Defendant pleaded guilty to an offense in 2009 and was sentenced to 40 years imprisonment. On January 19, 2021, he filed a motion for post-trial discovery under the Michael Morton Act, Texas Code of Criminal Procedure Article 39.14. With his motion he included a letter requesting the clerk forward his motion to the judge. On January 28, 2021, defendant sent another letter directly to the judge requesting a ruling on his motion. The trial judge declined or failed to rule.

Holding. Yes. The trial court has a ministerial duty to rule on a discovery motion, even one filed more than a decade after trial. Mandamus relief is appropriate when a government actor declines to perform a ministerial act and the defendant has no other adequate remedy at law. There being no other adequate remedy, mandamus was appropriate here.

Comment. I am normally critical of the heavy-handed application of technical rules against pro se defendants. But jurisdiction is not a mere technical rule, and I’m not confident the trial court has jurisdiction to grant an order for discovery in this case. The tug-of-war in my head on this issue is between the dilemma of trial courts having jurisdiction into perpetuity (infinite jurisdiction) and having at least enough jurisdiction to enforce Article 39.14(k) which provides:

(k) If at any time before, during, or after trial the state discovers any additional document, item, or information required to be disclosed under Subsection (h), the state shall promptly disclose the existence of the document, item, or information to the defendant or the court.

In the State’s motion for rehearing they explain “[l]ike Chapters 11 and 64 of the Code of Criminal Procedure, the Michael Morton Act provides post-mandate jurisdiction to hear motions – but only for those defendants convicted in 2014 or later .” Sounds like they are conceding trial court jurisdiction into perpetuity.

Cameron v. State, No. 04-19-00245-CR (Tex. App. San Antonio, Jun. 30, 2021)

Issue. (1) Does the due process doctrine of in pari materia require the State to prosecute a person who hires a hitman under the Criminal Solicitation statute and not under the Murder statute as a party to the hitman’s offense? (2) Are insinuations about leniency in exchange for honesty and false assertions that co-conspirators have already implicated an interviewee the type of psychologically coercive tactics which render a confession involuntary? (3) Is an indigent defendant entitled to the appointment of an expert in police interrogation tactics?

Facts. Defendant was convicted of murder. The State presented evidence that she “concocted a plot to murder her former partner’s and son’s father” to collect insurance proceeds. The plot involved three individuals. Defendant was convicted under the law of parties for her conduct in soliciting the other individuals to commit the murder. In addition to challenging the legitimacy of the State’s charging decision, the defendant challenged the lawfulness of her confession. Defendant was interrogated by two officers at the police station in a small room but was free to leave the room during the interrogation and ultimately permitted to go home even after confessing to her involvement in soliciting the murder. The interrogating officer lied to the defendant about how much they knew about the offense, advised that honesty would help her with her case, made references to the defendant’s family, and falsely implied that the hitman was in custody and had already implicated her.

Holding. (1) No. “Two penal provisions are in pari materia if one provision has broadly defined an offense, and a second has more narrowly hewn another offense, complete within itself, to proscribe conduct that would otherwise meet every element of, and hence be punishable under, the broader provision.” Here the criminal solicitation statute is not a more narrowly hewn version of the murder statute. Both statutes contain elements the other does not. “Murder requires death of an individual.” “Criminal solicitation requires a second person be involved in the commission of the offense.” (2) No. The promise of leniency was a vague insinuation that honesty would help with the defendant’s case and devoid of any specifics about charging decisions or possible sentences. There is no evidence the defendant was “overborne as the result of any promise.” (3) No—at least not here. The court considers three factors in determining whether to appoint an expert: (1) the private interest that will be affected by the action of the State, (2) the State’s interest that will be affected if the safeguard is provided, and (3) the probable value of the additional procedural safeguards that are sought and the risk of erroneous deprivation of the affected interest if those safeguards are not provided. The defendant’s (private) interest in the accuracy of the proceeding weighs more heavily than the State’s interest in judicial economy, but the third factor is the weightiest. The defendant has the burden to show that the failure to appoint an expert would create a risk of an incorrect verdict and should support their motion with affidavits or other evidence supportive of the theory, explain why the expert would be helpful or why there is reason to question the State’s expert or proof. Here defense counsel’s assertion that he required an academic and sociological analysis of interrogation tactics was insufficient.

Comment. The narrowly hewn test should be measured by a hypothetically correct jury charge, in my opinion. The elements of the defendant’s offense in this case did, in fact, require a second person to be involved. And while criminal solicitation does not require the death of another individual – it contemplates it: “[i]t is no defense to prosecution under this section that: (4) the felony solicitated was actually committed.” Tex. Penal Code 15.03(c). The court notes that Criminal Solicitation is a inchoate offense and Murder is not. But doesn’t party liability convert it to one? 

5th District Dallas

Turner v. State, No. 05-19-01328-CR (Tex. App.—Dallas, Jun. 9, 2021)

Issue. (1) Can evidence sufficiently support a continuous sexual abuse of young child conviction when the trial court instructs the jury to consider multiple theories of sexual abuse, some of which are wholly unsupported by the record? (2) Did the trial court improperly comment on the weight of the evidence by instructing the jury that “penetration is complete however slight?”

Facts. Defendant was convicted of continuous sexual abuse of a young child. Defendant sexually abused his six-year-old and seven-year-old granddaughters. He was caught by his wife on one occasion. Both children identified acts of digital penetration and sexual contact on multiple occasions over the course of several years. A nurse examiner confirmed injuries to one of the granddaughters consistent with the accusation. In the application paragraphs of the jury charge, the court instructed the jury they could convict on five theories of sexual abuse. Two of those theories were unsupported by any evidence in the record: penetration or sexual contact of the anus. Defendant’s trial strategy as to the remaining bases of conviction included attacking the credibility of witnesses and presenting a theory that his actions were involuntary due to his diabetic low blood sugar.

Holding. (1) No. The verdict was non-specific. There is no basis to conclude the jury relied on erroneous theories. The evidence shows many acts of sexual abuse a period of time exceeding 30 days. (2) No. “The State’s brief concedes the language was erroneous. However, mandatory precedent from 1937 establishes that such language is (i) analyzed as an instruction and (ii) not erroneous.” The Court of Criminal Appeals has condemned and reversed in cases where the trial court defines an anatomical threshold constituting penetration. Greene v. State, 476 S.W.3d 440 (Tex. Crim. App. 2015). But here the trial court did not provide any specific threshold. Even if the instruction was erroneous, the defendant was not egregiously harmed by it.

Dissent (Partida-Kipness, J.). Greene v. State overruled by implication the 1937 precedent permitting the trial court to instruct a jury that “penetration is complete, however slight.” Two courts of appeal have recognized this. Submission of the penetration definition was erroneous but not egregiously harmful.

Comment. I have no issue with the outcome in this case – the evidence presented by the State seems substantial, and the likelihood the jury charge quirks resulted in an unjust result are far too remote. But the case highlights some frustrating realities about our standards of review. Our disproportionate standards for appellate review juxtaposed in this case is what frustrates. We don’t analyze the jury’s thought process unless we need to analyze the thought process to conclude they didn’t think something that would be bad for the verdict.

State v. Patel, No. 05-20-00129-CR (Tex. App.—Dallas, Jul. 2, 2021)

Issue. (1) May a trial court grant a motion to suppress on grounds not raised by a defendant’s motion to suppress?  (2) Is the State’s failure to present evidence of a return and inventory a proper basis for granting a motion to suppress evidence? (3) Must the State show that blood was both drawn and analyzed within the statutorily prescribed three-day period required for execution of a search warrant?

Facts. Defendant was arrested for driving while intoxicated. The arresting officer applied for a warrant and articulated the grounds for his belief the defendant was intoxicated. A magistrate signed a warrant authorizing a blood draw but not blood testing. The warrant further required the officer to execute the warrant within six hours of its issuance. The defendant’s blood was drawn seven minutes after the magistrate issued the warrant, however the laboratory did not test the blood until four days later. Defendant filed a motion to suppress. At the hearing, both the State and the defendant stipulated to the validity of the search warrant and focused arguments on the validity of laboratory testing not authorized by the warrant. Despite the stated scope of the motion, the trial court suppressed the State’s evidence base on: (1) the untimely execution of the search – namely, the laboratory testing conducted outside of the statutorily required three-day execution period under Texas Code of Criminal Procedure 18.07(a), and (2) the failure of the officer to make a timely return and inventory of the executed search warrant. The trial court did not address the implications of the dual-search-dual-authorization issue presented by the DWI blood draw and subsequent test. At the time of the hearing, this issue was an unresolved issue under State v. Martinez, 570 S.W.3d 279 (Tex. Crim. App. 2019). However, during the pendency of this appeal, the Court of Criminal Appeals issued its opinion in Crider v. State effectively resolving the dispute in favor of the State, 607 S.W.3d 305 (Tex. Crim. App. 2020).

Holding. (1) No. “The State has no burden at a pretrial suppression hearing until the defendant alleges a theory of suppression on which the State bears the burden of proof. . . . As a result, the State’s burden of production and persuasion with respect to such issues was never triggered.” (2) No. Texas Code of Criminal Procedure Article 18.10 which provides the requirement for an inventory and return specifically prohibitions suppression of evidence for failure to comply. (3) No. Texas Code of Criminal Procedure Article 18.07(a)(3) requires “execution of a search warrant” within three days of its issuance. But “execution” is the seizure of the evidence, not the subsequent searches. Here, the blood was drawn, and therefore the warrant executed, within three days.

Comment. Despite the issue not being properly raised below, the court nonetheless rejects the argument that the blood must be tested within the three-day period for warrant execution mandated by Article 18.07. The court cites its own opinion in State v. Jones, 608 S.W.3d 262 (Tex. App.—Dallas, 2020) as authority for a conclusory proposition that a search warrant is fully executed upon the seizure of the evidence. This is not correct. The definition of execute is “to carry out fully: put completely into effect. “EXECUTE.” Merriam-Webster Online Dictionary. 2018. (1 August 2020). A search warrant is not fully carried until it can no longer be pointed to as the justification for conducting a search or a seizure. And Crider did nothing to disturb the Martinez holding that “when the state itself extracts blood from a DWI suspect, and when the state conducts the subsequent blood alcohol analysis, two discrete ‘searches’ have occurred for Fourth Amendment purposes.” Martinez merely held that the second search is impliedly authorized when the police have asked a magistrate to issue a warrant to draw blood. This issue has legs. Article 18.07 says get it done within three days. Because this is a State’s appeal, the defendant should have an opportunity to re-litigate. He should. And then he should take this up to the Court of Criminal Appeals.

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

Ex parte Owais, No. 07-20-00245-CR (Tex. App.—Amarillo, Jun. 16, 2021)

Issue. (1) When the State offers and the defendant rejects a misdemeanor reduction, is counsel ineffective for failing to advise a defendant that a felony crime of violence will result in automatic deportation? (2) Is counsel ineffective for failing to advise his client to pursue an appeal in order to prevent ICE from using defendant’s “final conviction” against him in deportation proceedings?

Facts. Defendant was driving his car on the sidewalk at Texas A&M. A police officer on foot tried to stop him and he kept on driving. Eventually another officer in a squad car pulled him over and asked him why he didn’t stop for the previous officer. Defendant stated he was scared and nervous and knew he was not supposed to be driving on the sidewalk. The State offered to reduce his offense from a third-degree evading to a misdemeanor evading charge. Counsel advised defendant that his case had triable issues, advised defendant to go to trial until the state offered a misdemeanor reduction, then advised defendant to accept the plea bargain offer. Prior to trial, counsel advised defendant to discuss potential immigration consequences with his immigration attorney and advised defendant generally that evading arrest in a motor vehicle could carry adverse immigration consequences. After a jury convicted defendant, counsel advised defendant of his right to appeal but also advised there were unlikely to be any issues to raise on appeal. The jury convicted the defendant and ICE initiated deportation proceedings based on his conviction which triggered automatic deportation as a “crime of violence.”

Holding. (1) No. When immigration consequences are succinct and straightforward, counsel has a duty to advise the defendant about the immigration consequences of making a particular decision in a criminal case. Padilla v. Kentucky, 559 U.S. 356 (2010). However, here, defendant claims his deportation proceedings arise from the instant felony evading arrest conviction – an offense which renders him automatically deportable as a “crime of violence.” In 2019 the U.S. Supreme Court found the federal definition for “crime of violence” unconstitutionally vague. Sessions v. Dimaya, 139 S.Ct. 2319 (2019). Thus, “the immigration consequences of a conviction for evading arrest in a motor vehicle are ‘not succinct and straightforward . . . .” (2) No. “Counsel is constitutionally required to consult with the defendant about an appeal when there is reason to think that a rational defendant would want to appeal, such as when there are apparent nonfrivolous grounds for appeal, or when the defendant has reasonably demonstrated to counsel his desire to appeal.” Only after his appeal deadline expired and immigration proceedings were initiated did defendant articulate his desire for an appeal on the basis of insufficient evidence. Evidence was sufficient. Defendant admitted to the offense. 

Comment. First, what did counsel do to be named specifically in this opinion aside from give good legal advice? Second, if the federal definition for crime of violence is unconstitutionally vague, how did he get deported for a crime of violence conviction? Which brings me to my third beef, I am not an immigration expert and maybe that is why I don’t know the answer to my second question. Maybe we should all just file Ake motions for immigration experts in cases with potential immigration consequences.

Teague v. State, No. 07-20-00074-CR (Tex. App.—Amarillo, Jun. 24, 2021)

Issue. Is evidence sufficient to convict a defendant as a party to aggravated sexual assault without a showing that the defendant intended for his co-defendant to inflict serious bodily harm?

Facts. Defendant held a woman in his trailer against her will, raped her, captured her after an attempted escape, returned her to the trailer, chained her to a toilet and helped codefendants rape and sodomize her repeatedly until she suffered serious bodily injury.

Holding. Yes. Defendant concedes he is party to the offense of sexual assault, but not aggravated sexual assault. Defendant relies on Nava v. State, 415 S.W.3d 289 (Tex. Crim. App. 2013) for the proposition that “the intent to promote or assist element of party liability required the State to prove that appellant intended the result of victim suffering serious bodily injury.” Nava is a felony murder case where a defendant entered a conspiracy to commit a theft and a co-defendant shot and killed an undercover officer. Nava’s conviction was reversed because “combining the language of [the party liability statute] with the felony murder statute, then, requires an intent to promote or assist, not only the commission of the underlying felony and the unreasonably dangerous act, but also the result of the offense of felony murder—the death of an individual.” The court here distinguishes Nava. In Nava the underlying felony offense was wholly unrelated to the offense the defendant was held liable for at trial. Here, the victim’s serious bodily injury was a foreseeable result of the underlying offense of sexual assault. The doctrine of transferred intent provides “if a defendant intends to promote or assist the commission of one type of sexual assault, but his co-defendant commits a different type of sexual assault, that difference does not shield him from party liability . . .”

8th District El Paso

Ex parte Cardenas, No. 08-21-00034-CR (Tex. App.—El Paso, Jul. 21, 2021)

Issue. Because Governor Abbott has suspended the provision of Article 17.151 of the Code of Criminal Procedure which mandates a personal bond for pre-indictment delay, must a trial judge instead set bond at an amount that a detainee can post to secure his or her release?

Facts. Defendant was arrested on ten charges relating to sexually abusing a child. He was unable to post his bail and the State did not indict him within 90 days. Defendant filed a writ of habeas corpus demanding release pursuant to Article 17.151 (mandatory release for pre-indictment delay). The district court denied relief and cited Governor Abbott’s GA-13 Emergency Order suspending Article 17.151.

Holding. Yes. Article 17.151 requires release on personal bond or an amount the defendant can afford to post. Emergency Order GA-13 only suspends the part of Article 17.151 – the part mandating release on personal bond. A judge still has a ministerial duty to set bond in an amount the detainee can afford if the State has not obtained an indictment in the periods specified in that Article. This issue was decided by the Court of Criminal Appeals last month in Ex parte Lanclos, No. PD-0243-21 (Tex. Crim. App. 2021). “Due to [Lanclos], we need not address whether GA-13 is constitutional or valid.”

Comment. Yes. Courts actually do need to decide whether GA-13 is constitutional or valid. This is an abdication of responsibility by our judicial system. Paying money to secure release when a statute passed by our legislature says you pay no money to secure release is an injury worthy of remedy. Injuries are remedied in courts. Yet, to date, no court wishes to address it.

9th District Beaumont

Hogue v. State, No. 09-19-00234-CR (Tex. App—Beaumont, Jul. 28, 2021)

Issue. Can an appellate court review a complaint about a sleeping juror or a juror unable to hear the trial when no objection was raised by the defendant in the trial court?

Facts. During defendant’s trial, one juror informed the trial judge he could not hear. The judge suggested the juror change his seat. Also, during defendant’s trial, the prosecutor brought to the attention of the trial judge that an entirely different juror was constantly falling asleep during testimony.

Holding. No. Defendant asserts the Sixth Amendment’s promise of a speedy public trial by an impartial jury required the trial court to remedy the problem of inattentive jurors sua sponte. Defendant has neither shown precedent nor argued that juror attentiveness falls within the two categories of errors which an appellate court can review without objection (waivable-only rights and absolute systemic rights).

10th District Waco

Huggins v. State, No. 10-19-00096-CR (Tex. App.—Waco, Jul. 7, 2021)

Issue. Can a trial court accept a pro se guilty plea without providing the Faretta v. California admonishments about the dangers and disadvantages of self-representation?

Facts. Defendant, having previously been represented by two appointed attorneys, asked to represent himself at trial. He signed a document indicating he knowingly waived his right to representation and requested to proceed without an attorney. The record contained some evidence that the defendant was sufficiently intelligent and experienced in criminal justice to support the conclusion that his waiver was knowing and intelligent. This included partial completion of a college education and prior criminal prosecutions. The trial court did not admonish the defendant regarding the dangers and disadvantages of self-representation.

Holding. Yes. In the Tenth District at least. Before a trial court may permit self-representation, the trial court must ensure the defendant is “aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.” Faretta v. California, 422 U.S. 806 (1975). However, the Court of Criminal Appeals has distinguished Faretta holding that it does not apply in cases of self-representation where the defendant does not contest guilt. Hatten v. State, 71 S.W.3d 332 (Tex. Crim. App. 2002). Defendant argued that the Court of Criminal Appeals limited its holding in Hatten to misdemeanor cases and cites one other court of appeals which agrees with this analysis. This court disagrees with this conclusion.

Ex parte Braswell, No. 10-21-00121-CR (Tex. App. Waco, Jul. 7, 2021)

Issue. Does an intermediate court of appeals have original jurisdiction to consider a pretrial writ of habeas corpus pertaining to bail?

Facts. Defendant filed an original application for writ of habeas corpus in the Tenth Court of Appeals after “an incident between the vehicle she was driving and another vehicle and after a blood draw was performed on Braswell.” In the writ, the defendant challenged the amount of her pre-trial bail.

Holding. No. The Texas Constitution vests intermediate appellate courts with original jurisdiction in writs of habeas corpus. But law also provides for direct appeal of pretrial writs of habeas corpus. The intermediate court of appeal cannot exercise both original and appellate jurisdiction. The original jurisdiction of a court of appeals to issue a writ of habeas corpus is limited to those cases where a person’s liberty is restrained because the person has violated an order, judgment, or decree entered in a civil case.

11th District Eastland

Smith v. State, No. 11-19-00222-CR (Tex. App.—Eastland, Jun. 10, 2021)

Issue. (1) In an online solicitation of a minor prosecution, is evidence that a defendant suggested he and the minor only “maybe have sex” sufficient to establish the intent to engage in sexual contact element of the offense? (2) Are recorded accusations lodged by a detective in an interrogation inadmissible under the Confrontation Clause when that detective is not called to testify at trial?

Facts. Law enforcement created an online post on Craigslist in the “casual encounters” section where they posed as a minor after a person responded to the post. Defendant responded to the post. The officer posing as a minor indicated he eventually informed the defendant that the person he was talking with was 13 years old. Defendant claims he did not receive that message prior to texting: “do you wanna come over and talk and drink and maybe have sex? Just see where it goes.” The officer then sent another message indicating the person with whom the defendant was speak was 13 years old. Defendant showed up for his “casual encounter,” texted “how do I know this isn’t a trap,” powered through that dilemma, entered the apartment and got arrested. Officers looked through defendant’s phone and could not find the first text message they sent defendant indicating an age of 13 years old – the one that preceded defendant’s suggestion that they “maybe have sex.” Defendant gave a mirandized interview where he disputed his knowledge and intent. The detective interviewing him lodged accusations such as “you knew she was 13” and “the opportunity presented itself and maybe you took advantage of it.” The State did not want to call the detective to testify at trial and instead played a recording of the interview over defendant’s objection.

Holding. (1) Yes. At least here. It is true that defendant’s explicit statement was that he intended to “maybe have sex” and see where things go. Even assuming he did not receive the first text message indicating age, defendant’s argument that he took “maybe have sex” off the table after receiving the second text message indicating the age of the minor is unpersuasive. Sufficient evidence indicated defendant went to the location set up by law enforcement with the intent to have sex with a minor. The encounter arose from a posting in the “casual encounters” section of Craigslist and the moment before he entered the apartment where he believed he was meeting a minor he asked “how do I know this isn’t a trap.” (2) Yes. At least here. But the error was not harmful. Testimonial statements that are offered for purposes other than to establish the truth of the matter asserted do not violate the Confrontation Clause. Tennessee v. Street, 471 U.S. 409 (1985). Sometimes the State may admit statements made by a non-testifying police officer during an interview to provide context for the interviewee’s responses. To determine whether contextual or background statements are admissible a court weighs the actual utility of placing the defendant’s own words into context against the “likelihood the jury will gravitate toward the statement’s improper use.” Here there was little to no utility, defendant’s responses were sufficiently understandable without the detective’s contextual accusations. This rendered the detective’s accusations inadmissible under the Sixth Amendment but the trial court’s error was not harmful. They “were of minimal importance to the State’s case” considering their cumulative nature to direct evidence linking defendant to the offense.

Comment. Does every one of these cases involve the defendant committing a crime despite knowing he is being set up?

Deere v. State, No. 11-19-00227 (Tex. App.—Eastland, Jul. 22, 2021)

Issue. (1) Must a trial court strike a juror for cause who indicates they have a bias in favor of police but who was not informed the law required them to be unbiased or set their bias aside? (2) To preserve error must a identify the objectionable jurors selected, is it improper for the trial court to require counsel to alienate the jury by doing this in their presence?

Facts. Counsel asked each potential juror “how much credibility, based on a scale of one to five, the juror would afford an officer of the law before any testimony was given, and each potential juror answered.” The scale of one to five was only vaguely explained. Counsel did not inform potential jurors that the law required their impartiality to judge credibility of witnesses nor did counsel ask whether jurors could set aside their bias in favor of following the law.  After following the first four steps in the five-step process to preserve error in the improper seating of a juror, trial counsel attempted to complete the process by objecting to improperly seated jurors once they were seated but before they were sworn. The trial court required defendant to object to jurors in their presence.

Holding. (1) No. “That some of the potential jurors answered that they would rank an officer’s credibility as a five does not necessarily equate to an admission that the juror would absolutely believe the officer’s testimony once given. Nor does it equate to the venireperson’s inability to set aside preconceived notions or an admission of the venireperson’s inability to follow the law.” This scenario is different than the one presented in Hernandez v. State, 563 S.W.2d 947 (1978) where a trial court exercised discretion to strike a juror for cause who committed to always believing a police officer no matter what. The Hernandez juror’s bias was more deeply entrenched and the trial court made a discretionary determination to excuse, not a compulsory one. (2) No. First, counsel did not follow the five-step process for objecting to improperly seated jurors. He must identify objectionable jurors before he learns of his opponent’s strikes (before the jury is announced). “This prevents a party from belatedly conforming its claimed objections to the jurors actually seated.” Here, counsel waited until the jury was seated (but not sworn). While it was probably unfair for the trial court to require counsel to make objections about the jury in front of the jury without any explanation for why a hearing outside the jury’s presence was denied “any potential harm was self-inflicted since the (object-before-jury-announced) procedure in Nava, was not precisely followed.”

Comment. I’m trying to wrap my head around the articulated reason for a rule that objecting once the jury is announced is too late. The court seems to say that this is essentially sandbagging. But, if the other four complicated steps in the process were followed, I don’t see how this is taking unfair advantage. The first step in the process is to make a “clear and specific challenge for cause.” So, counsel would have to conform the objection to improperly seated jurors to the previously made challenge for cause.

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

The Thirteenth District Court of Appeals in Corpus Christi / Edinburg did not hand down any significant or published opinions since the last Significant Decisions Report.

14th District Houston

Null v. State, No. 14-19-00839-CR (Tex. App.—Houston [14th Dist.] Jun. 8, 2021)

Issue. (1) Is a complainant’s inability to remember an attack or identify the defendant as an attacker an impediment to a sexual assault conviction if DNA evidence doesn’t exclude the Defendant as the assailant? (2) Can an appellate court find that venue was proper out of thin air? (3) when a trial court excuses a juror sua sponte on unauthorized grounds (can’t speak English), has a defendant preserved error by objecting to the factual assessment rather than the unauthorized grounds? (4) Was defendant wrongfully denied a lesser-included instruction on attempted sexual assault after the sexual assault nurse indicated that the DNA she collected could have migrated to its location of discovery (inside of the vagina) from another place (outside of the vagina)? (5) Did the trial court err in admitting DNA testing over Appellant’s 702 objection that the State’s witness had no information on how the laboratory conducted testing or independent qualifications to explain the testing.

Facts. 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. Despite the complainant’s inability to describe an attack or identify the defendant as the attacker, her initial statement to her mother was that she had been raped and the defendant could not be excluded as a contributor to the DNA. A rational jury could have concluded that he was the attacker and that he had sexually assaulted the victim. (2) Yes. The State has the burden to prove venue by a preponderance of the evidence. Because the defendant did not contest venue, “we presume that the prosecution satisfied that burden . . .” (3) No. While inability to speak English is not a grounds for the trial court to excuse a juror over objection, the defendant must tailor his objection to the trial court’s lack of authority to preserve such an argument for appeal. Here the defendant objected to the trial court’s assessment of whether excused jurors sufficiently spoke English. This did not preserve the legal issue for review. (4) No. Entitlement to a lesser-included instruction on attempt requires affirmative evidence, the fact that the sexual assault nurse believed that semen could have migrated from outside to inside the vagina is mere uncertainty and not affirmative evidence. (5) No. Trial courts can take judicial notice of all DNA evidence concerns under Texas Rule of Evidence 702, including the validity of DNA testing and the validity of the STR technique in evaluating DNA evidence.

Dissent (Hassan, J.). “Instead of endeavoring to establish that the State met its burdens [under 702], both the State’s brief and the majority rely upon the well-known fact that courts are permitted to take judicial notice of select facts. Without evidence that the trial court took judicial notice, this is an unremarkable recitation of an unambiguous Rule.”

Comment. This opinion is incredible. First, if the complaining witness can’t articulate that an attack occurred and identify the defendant was the attacker, the mere fact that he can’t be excluded as a DNA contributor was enough for two judges on this panel. Then, the evidence sufficient to establish venue is that there is no evidence of venue but the court will fix it by presuming there is. The goose/gander issue with criminal attempt should be noted, too. That DNA was found in the complainant’s vagina was certainly evidence of the defendant’s guilt for this panel, but that it could have migrated from outside of the vagina to inside of the vagina is not affirmative evidence of anything. A motion for en banc reconsideration has been filed. Rightfully so.

Coleman v. State, No. 14-19-01016-CR (Tex. App.—Houston [14th Dist.] Jul. 15, 2021)

Issue. (1) Can the State establish the necessary element of physical pain in a bodily injury assault without the testimony of the complainant or any physical indicia of injury? (2) Can the State establish the necessary element of a dating relationship in a family violence prosecution by showing the defendant made 235 phone calls to the complainant and expressed that he loved her and missed her? (3) Can the State use a prior assault family violence conviction to elevate a misdemeanor assault to a felony and then sentence a defendant as a habitual offender with additional assault family violence convictions?

Facts. A police officer observed defendant’s car jerking in front of him at a stop sign, saw defendant slap and hit the complainant, heard the complainant scream for help, observed the vehicle fail to maintain a single lane, observed the passenger door open while the vehicle was still moving, observed complainant’s body hanging out the door as though someone was preventing her escape. Complainant got into the officer’s vehicle and explained the assault that had occurred. While incarcerated waiting trial, defendant made 235 phone calls to the complainant. During one call he told the complainant that he loved her and missed her. Complainant did not testify at trial.

Holding. (1) Yes. “[A] factfinder may infer that a victim actually suffered physical pain, and no witness—including the victim-need testify that the victim felt pain.” The jury could have inferred the complainant felt pain when she screamed help, when she was slapped, when she was hit, when she hung out the door of the car. (2) Yes. The jury could infer from 235 phone calls as well as from “the tenor and content of” intimate conversations that the defendant and complainant had a dating relationship. (3) Yes. Defendant’s analogy to theft offenses elevated by “two or more” previous theft convictions is misplaced. A state jail felony elevated theft may not be punished as a habitual offender with additional theft convictions because the statute provides that a theft offense is elevated by “two or more” prior thefts. This language indicates the legislature’s intent to set a maximum punishment on habitual thieves at state jail punishment. In the context of habitual domestic violence, the offense is elevated to a felony if it is shown that the defendant has a single prior family violence offense. The statutory language lacks the open-endedness of the elevated theft statute which justified a limit on usage for prior offenses of the same type.

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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