Case of the Week Archive

Pena v. State (8th COA)

The State cannot revoke a defendant’s probation based on the invocation of his Fifth Amendment right in mandated sex offender treatment. Because the State did not grant the defendant full-use immunity for any statements that could be used against him in potential future cases, the defendant cannot be compelled to make self-incriminating statements in a mandatory treatment program and the State cannot use his dismissal from that program as the basis for revoking his probation. Read.

Ex parte Poe (9th COA)

Penal Code §42.01(a)(8), prohibiting disorderly conduct by displaying a firearm, is not unconstitutionally vague or overbroad. The court found that that statute punishes conduct, not speech, and is rationally related to the State’s interests in protecting citizens from harm. Read.

Letter from the Hudspeth County Attorney

While the county sheriff has authority to maintain certain funds outside of the county treasury, these funds are still subject to oversight and audit by the county auditor. In large counties it is possible for the county auditor to require his or her countersignature in addition to that of the sheriff when withdrawing funds from the sheriff’s accounts, but in counties with a population less than 190,000, unless otherwise provided for by statute, there is no authority to require an auditor’s signature on sheriff’s funds held outside the county treasury. Read.

State v. Ambrose

When deciding if there was egregious harm suffered in a case, an appeals court is not required to defer to findings of fact made by the trial court. To the extent a question of fact may depend on credibility or demeanor, it may be appropriate to defer to the trial court’s findings; however, on questions of fact or law that do not rely on an evaluation of credibility or demeanor, an appeals court is not required to defer to the trial court findings. Read.

Mayer v. State (14th COA)

Transportation Code §550.021(a), as amended in 2013, does not require a defendant to know that he or she hit a person before the State can show failure to stop and render aid. The Legislature specifically added §550.021(a)(3), which states: “The person shall … (3) immediately determine whether a person is involved in an accident, and, if a person is involved in the accident; remain at the scene . . .” to close the loophole used by drunk drivers that they were unaware that they hit another person when they left the scene. Read.


State v. Huse

HIPAA does not affect the Hardy rule that a defendant does not have an expectation of privacy in the BAC results of blood taken and tested by a hospital. Additionally, it is not a violation of CCP Art. 38.23 for a prosecutor to obtain medical records through a grand jury subpoena, even when that subpoena was not signed by the grand jury foreman, and the information not directed to be returned to the grand jury. Read.

Elizondo v. State

Before a jury charge on provocation is allowed, a court must determine if there is enough evidence that a jury could find three factors: 1) that the defendant did some act or used some words that provoked the attack on him; 2) that such act or words were reasonably calculated to provoke the attack; and 3) that the act was done or the words were used for the purpose and with the intent that the defendant would have a pretext for inflicting harm upon the other. The three provocation factors must all be present before a court can address the issue of whether the defendant abandoned or attempted to abandon the encounter. Read.

Estes v. State (2nd COA)

Penal Code §22.011(f) violates the Equal Protection Clause when it results in a harsher punishment for a defendant based only on the fact that he was married. Section 22.011(f) raises the level of sexual assault from a second-degree felony to a first-degree felony when “the victim was a person whom the actor was prohibited from marrying or purporting to marry.” There is no rational basis for the Legislature to treat married and unmarried defendants differently in this regard. Read.

Bell v. State (11th COA)

Exigent circumstances for a warrantless blood draw were not present in a case where officers made no effort to identify if a magistrate was available to sign a warrant. The additional factors of identifying a passenger in the vehicle and alerting CPS to the presence of a child in the vehicle were not enough to claim exigent circumstances given that multiple officers were available on-scene to assist. Read.

Skinner v. State

The Court of Criminal Appeals determined that a previous Agreed Joint Order for DNA Testing, filed by the defendant and the State in the trial court, serves as a Chapter 64 motion, giving the Court jurisdiction to address the defendant’s DNA recalculation request. Read.

This is the first case involving the problems that arose last summer regarding mixture DNA and the Combined Probability of Inclusion (CPI) statistics used by DPS and other labs to report results.  You can read the background on this here.

Cameron v. State

A defendant must meet an initial burden of showing his or her trial was closed before the court of appeals can consider whether the closure was justified or if it was a Sixth Amendment violation. Read.

Kent v. State

When multiple thefts are aggregated under Penal Code §31.09, must each theft is not required to be proven beyond a reasonable doubt because the conduct is considered to be one singular offense. Additionally, the jury must only be unanimous in its agreement that a threshold amount has been reached and that all elements have been proven for each specific instance of theft the individual believes was a part of the scheme or course of conduct—it is not required that each member of the jury rely on the same specific instances of theft. Read.

Minton v. State (7th COA)

It was possible to show proper venue in Lubbock County even though the defendant had never been within 175 miles of Lubbock County. Venue is not an element of the crime and must be proved only by a preponderance of the evidence. While this defendant did not enter Lubbock County, he acted with a common purpose to provide his co-defendants with heroin that was transported to and intended to be sold in Lubbock County. Read.

Blea v. State

When considering evidence of serious bodily injury, injuries should be assessed as they were inflicted by the defendant, not as they existed in an improved condition after medical treatment. Read.

State v. Velasquez (4th COA)

A trial court must give notice to all parties before holding a hearing on a motion to suppress. Hearing the motion without notice at the trial setting does not meet the requirements of Code of Criminal Procedure Article 28.01. Read.

Ex parte Gomez-Reyes

A defendant is entitled to a certified translator for a memorandum attached to his application for habeas corpus. The Court of Criminal Appeals will hold the application in abeyance until the trial court obtains a certified, translated copy of the defendant’s attached memorandum. Read.

State v. Castorena (4th COA)

The State did not need to identify specific instances of conduct in the defendant’s indictment for misapplication of fiduciary property because the State included aggregation language in the indictment, specifically from §32.03 of the Penal Code. Thus Castorena was charged with only a single offense, and specific acts of theft were not necessary. Read.

Marshall v. State

It was not egregiously harmful to omit the words “bodily injury” from the jury charge in a trial for felony assault of a family member under Penal Code §22.01 because the charge alleged that the defendant “intentionally, knowingly, or recklessly imped[ed] the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck, or by blocking the person’s nose or mouth,” which is a bodily injury per se. Read.

Schultz v. Commission for Lawyer Discipline

Texas Disciplinary Rule 3.09(d) is broader than the constitutional duty to disclose evidence under Brady because it does not require “materiality” to establish a violation. Additionally, the Board of Disciplinary Appeals found no intent requirement for violations of Rule 3.04. Read.

Wingfield v. State (7th COA)

A missing or negative family violence finding in a previous conviction does not disqualify that conviction for future use under Penal Code §22.01(b)(2)(A). If the jury can find the necessary proof, a negative family violence finding does not affect §22.01(b)(2)(A). Read.

Ex parte Lovings (14th COA)

Code of Criminal Procedure Art. 12.01(1)(C)(i) extends the statute of limitations when DNA is collected in a sexual assault case. There is no requirement that an investigation be active and no requirement of any “reasonable diligence” on the State’s part. Read.

Ex parte Barnaby

The Court decided that the materiality of false evidence should be held to the same standard as materiality of counsel’s deficient performance: If the defendant had known the evidence was false, he would not have pled guilty but instead gone to trial.


Beltran v. State

The law of parties does not apply to a consideration of sudden passion; the jury must consider the whether defendant’s conduct during the crime was taken under sudden passion, regardless of whether the defendant was a principle or a party.


State v. Johnson

The flag desecration statute, Penal Code §42.11, is unconstitutional because it is overbroad and it prohibits a substantial amount of activity meant to be protected under the First Amendment.


Veliz v. State (14th COA)

Before a court admits retrograde extrapolation testimony, the testifying expert must be found to be reliable. If you desire to have retrograde extrapolation testimony admitted before the jury, the expert witness must be provided as many facts about the defendant as possible, and she must be able to explain her opinion with clarity, including its potential deficiencies.

Read opinion.

McCay v. State (5th COA)

A defendant can be prosecuted for attempted theft for causing a person to execute a will and filing that will, if he acted with the intent to commit theft, or intent to deprive property from anyone who had a greater right to possession of the property.

Read opinion.

Lopez v. State (14th COA)

The Eighth Amendment does not require a defendant to be able to present mitigating evidence when faced with a mandatory life sentence. Additionally, the mandatory life sentence imposed under Texas Penal Code §12.42(c)(2) is not unconstitutional under either the Eighth or Fourteenth Amendments to the United States Constitution.

Read opinion.

Rodriguez v. State

There is no reasonable expectation under the Fourth Amendment that the results of tests taken for the purpose of medical treatment could not be shared with the police. Additionally, the Texas Medical Practices Act and HIPAA do not protect blood-test results from a valid subpoena.

Read opinion.

Cortez v. State

The term “item” in Penal Code 32.51(b)(1) means each individual piece of identifying information; as such, a single check could contain multiple “items” of information including name, date of birth, and bank account number. 

Read opinion.

Hernandez v. State (3rd COA)

A judge can revisit and increase a defendant’s bond under CCP article 17.09 even after the defendant was previously released on personal bond under CCP article 17.151. If there is a reason for the court to revisit the issue of bail under article 17.09, if bail is “defective, excessive, or insufficient, or for other good and sufficient cause,” the court may do so and may increase bail or add conditions. Read opinion.

Ex parte Hill (5th COA)

It is not a violation of double jeopardy to charge a defendant with capital murder for a death that occurred due to injuries sustained in an aggravated robbery, after defendant’s conviction for the robbery. There is an exception to the double jeopardy rule that allows for a subsequent prosecution on a more serious charge when facts necessary for that charge, here the victim’s death, have not occurred at the time of the original prosecution.

Read opinion

In re Allen

Mental retardation (aka intellectual disability) can be determined in a death penalty case by means other than submission to the jury.  The Court of Criminal Appeals found that the law is unsettled and trial judges have discretion to decide how to determine intellectual disability including by pretrial determination, submission of a special issue to the jury, or at sentencing.

Read opinion

Ex Parte Heilman

When the defendant waived the statute of limitations and pled guilty to a time-barred defense, he was not permitted to then raise the statute of limitations on appeal as a bar to his plea. Unless the claim is that a new statute that extends the statute of limitations has amounted to an ex post facto violation, all statute of limitations claims are forfeitable rights. Read the opinion.


State v. Moseley (9th COA)

When the State chose not to identify XLR-11 by its scientific name in the indictment but instead used the “synthetic chemical compound” language found in Texas Health and Safety Code §481.1031, the indictment was not subject to a motion to quash for being impermissibly vague. The State does not have to name a Penalty Group 2-A substance specifically because the statute’s list of substances contained within the group is non-exhaustive. Read the opinion.


Heien v. North Carolina

When an officer stopped the defendant for having only one working brake light and subsequently found drugs in the car, the drugs should not have been suppressed after the appeals court determined that the ambiguous traffic statute actually permitted the operation of a vehicle with only one working brake light. An objectively reasonable mistake of law by an officer does not offend the Fourth Amendment. In this case, no North Carolina court had ever held that the officer’s interpretation of the statute was legally incorrect, and both the state appeals court and U.S. Supreme Court concluded the officer’s interpretation of the statute was a reasonable one given the statute’s ambiguous language. Read the opinion