Case of the Week Archive

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.

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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.

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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.

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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.

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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. 

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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.

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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.

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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

Saenz v. State

A jury charge on capital murder under Penal Code §19.03(a)(7) (murder of more than one person in same transaction or pursuant to same scheme) must require the jury to agree on the identity of a predicate murder, and then the identity of at least one additional murder victim. Read the opinion.

State v. Villarreal

It is unconstitutional to perform a blood draw on a driver under the authority of Texas’ implied consent laws when there is no warrant to draw the blood and the driver has explicitly stated he does not consent to the draw. A blood draw is a search, and the implied consent statutes do not create an irrevocable consent that would function as an exception to the warrant requirement of the Fourth Amendment. The court also declined to extend the automobile exception, the special-needs exception, or the search-incident to arrest exception to encompass warrantless blood draws. Read the opinion.

 

Ex Parte Cathey

A habeas trial judge is not permitted to subtract points from the defendant’s IQ based on the “Flynn Effect,” a phenomenon by which an IQ test that was written in the past tends to inflate the IQ of a present-day test taker. Factfinders may consider the Flynn Effect and its possible impact on IQ scores generally, just as they may consider the practice effect, potential malingering, the examiner’s behavior, and so forth, but the IQ score itself cannot be changed. Read the opinion

 

Cameron v. State (4th COA)

When the the bailiff removed all spectators from the courtroom prior to voir dire because the room would be too crowded with the 65-member jury panel, the defendant was denied the right to a public trial, even though the court said the spectators could come back in if they wanted but no one ever actually re-entered the courtroom. Read the opinion. 

Ex Parte Thompson

Section 21.15(b)(1) of the improper photography statute, making it illegal to photograph persons in places other than a private dressing room or bathroom under certain circumstances, is facially unconstitutional on 1st Amendment grounds. Banning otherwise protected expression on the basis that it produces sexual arousal or gratification is the regulation of protected thought, and such a regulation is outside the government’s power. Read the opinion.

Kent v. State

In an aggregated theft case under Penal Code §31.03, the jury be unanimous, not only as to the total amount stolen from all victims, but also as to the owner and amount of each alleged incident of theft that makes up the aggregated amount. In a case of first impression, the court held that each individually alleged instance of theft is an element of the crime upon which the jury must unanimously agree. When an aggregate theft offense is predicated on §31.03, the jury must unanimously agree about what property was unlawfully appropriated. Read the opinion.

 

Tata v. State (1st COA)

When an arson investigation was conducted in a house used as a daycare soon after the fire had been extinguished, evidence collected in a part of the house that was not damaged by the fire was not subject to suppression. Three factors used by the Supreme Court to analyze the constitutionality of warrantless entry are: 1) whether there are legitimate privacy interests in the fire-damaged property that are protected by the Fourth Amendment; 2) whether exigent circumstances justify the government intrusion regardless of any reasonable expectations of privacy; and (3) whether the object of the search is to determine the cause of the fire or to gather evidence of criminal activity. All three factors weighed against suppression in this case because the house was used as a daycare, the investigation happened promptly after the fire had been extinguished, and the object of the investigation was to determine the cause of the fire. Read the opinion.

Forsyth v. State (11th COA)

1) Implied consent is not the equivalent of voluntary consent for the purposes of establishing an exception to the warrant requirement of the Fourth Amendment. At least when a defendant refuses to submit to a breath test, that person cannot be said to have freely and voluntarily consented to the search. Language to the contrary from the Court of Criminal Appeals in Forte v. State, 759 S.W.2d 128, 138 (Tex. Crim. App. 1988) establishes only that implied consent makes it illegal to refuse a breath or blood test under specific circumstances, and language from Beeman v. State, 86 S.W.3d 613, 615 (Tex. Crim. App. 2002) specifically stating that implied consent permits warrantless blood draws in Texas is only dicta. Finally, a footnote in Missouri v. McNeely, 133 S.Ct. 1552 (2013) that appears to endorse Texas’ implied consent statute does not go so far as to approve of warrantless searches under those laws, but it does imply that implied consent can be withdrawn.

2) Warrantless searches under Texas’ “third-strike” implied consent statute are not presumptively reasonable. Warrantless searches are presumed unreasonable and must be evaluated on a case-by-case basis. To do otherwise creates a per se exception to the warrant requirement, which is prohibited by McNeelyRead the opinion.

Klemisch v. State (7th COA)

The defendant's misdemeanor charge was not barred by limitations when the defendant was indicted a month after his arrest for felony marijuana possession in a school zone, and the prosecution dismissed that indictment two years later and charged him with misdemeanor possession when it became apparent there was a problem with the school-zone allegation. The statute of limitations was tolled by the indictment, and the information contained a paragraph correctly stating that fact. Read the opinion.

 

Riley v. California

The police may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested, unless the facts create an exception to the warrant requirement, such as exigent circumstances. The sheer volume and diversity of information that is stored on a cell phone makes searching one incident to arrest analogous to searching a giant trunk the arrestee is towing and arguably more invasive than searching the arrestee’s home, both of which would also require a warrant. Read the opinion.

Flowers v. State (6th COA)

When police asked for permission to retrieve a contact’s phone number from the defendant’s phone, and the defendant responded by consenting and telling them under what name the contact’s number was saved, the police did not exceed the scope of consent when they also searched and photographed the defendant’s call history. The defendant said the number was “saved under” the contact’s name, but an objectively reasonable person could have interpreted that response as a helpful suggestion to the person searching the content of the phone rather than an explicit limitation. Read the opinion.

 

Weems v. State (4th COA)

Texas’s implied consent and mandatory blood draw statutory scheme does not constitute an exception to the Fourth Amendment’s warrant requirement. The message conveyed by both McNeely and the remand of Aviles is that the Fourth Amendment prohibits per se, categorical exceptions to the warrant requirement. Texas’s implied consent and mandatory blood draw statutes amount to per se, categorical exceptions because they do not take into account the totality of the circumstances presented in each case; they consider only certain facts. Read the opinion.

 

Cooper v. State

The defendant's conviction of both aggravated robbery by causing bodily injury and aggravated robbery by threat to the same victim during a single robbery violated double-jeopardy. Although the majority opinion does not establish the reasoning behind the holding, a concurring opinion by Presiding Judge Keller and a sepearte concurrence by Judge Cochran give insight into the holding. Read the opinion, Presiding Judge Keller's  concurrence, and Judge Cochran's concurrence.

 

Halili v. State (14th COA)

A warrant may be based on evidence collected by an undercover officer who is physically outside of his jurisdiction. Although the officer has no authority as a peace officer outside of his jurisdiction and is essentially acting as a citizen, there is nothing illegal about a citizen gathering that evidence. Read the opinion.

Lewis and Nolley v. State

A mandatory life sentence for a juvenile is constitutional under Miller v. Alabama. A court must make an individualized determination of the appropriateness of a life without parole sentence if the defendant is a juvenile, but not if the juvenile is facing a mandatory life sentence with the possibility of parole. Read the opinion.

Navarette v. California

When a driver called 911 to report a specific make, model, and license number of a truck that had just run her off the road at a specific mile marker, that information was sufficient to provide law enforcement with reasonable suspicion to perform an investigative stop for DWI. Under the totality of the circumstances, the officer had reasonable suspicion that the driver was intoxicated. The tip, even if anonymous, was from an eyewitness and described behavior consistent with DWI; the officer’s corroboration of the truck’s description and location established that the tip was reliable enough to justify a traffic stop. Read the opinion.

Sutherland v. State (7th COA)

Implied consent does not provide an exception to the warrant requirement for a warrantless blood draw. By vacating and remanding a case from the San Antonio court of appeals,Aviles v. State, 385 S.W.3d 110, the United States Supreme Court has rejected any position that would treat Transportation Code §724.012(b)(3)(B) as an exception to the Fourth Amendment. To the extent that §724.012(b)(3)(B) can be read to permit a warrantless seizure of a suspect’s blood without exigent circumstances or consent, it violates the Fourth Amendment’s warrant requirement. Read the opinion.

El-Ali v. State (Supreme Court of Texas)

The court refused the petition for review on the question of whethr or not the “innocent owner” provision of the asset forfeiture statute was unconstitutional because it requires a petitioner to prove his innocence rather than requiring the State to prove he is not innocent. Although the dissent believed the issue was ripe for review, the concurrence noted that the question has already been answered by the court and affirmed repeatedly by the United States Supreme Court. Read the dissent and the concurrence.

 

Ellison v. State (14th COA)

The State violated the defendant’s double-jeopardy rights when it convicted him twice on two separate counts of family violence that both relied on a common violent act. The overlap of two of the same underlying instances of bodily-injury assault against the same victim during the same time period was not constitutionally permissible. Read the opinion.

Berry v. State (4th COA)

The defendant could not be found guilty of misapplication of fiduciary property on the theory that he was acting in a fiduciary capacity when he took payments from customers for window treatments and then failed to deliver those goods as promised. For the first time, the court created a definition for the statutorily undefined term “fiduciary capacity” and held that “one acts in a fiduciary capacity for purposes of the statute if his relationship with another is based not only on trust, confidence, good faith, and utmost fair dealing, but also on a justifiable expectation that he will place the interest of the other party before his own.” Although the defendant clearly acted contrary to an agreement with which his customers trusted him to comply, there was no evidence as to a justifiable expectation that he would place their interest before his own. Read the opinion.

Ex Parte Maxwell

The Supreme Court’s prohibition against mandatory life without parole for juvenile offenders announced in Miller v. Alabama applies retroactively. Because Miller completely removes a punishment from the list of punishments that can be imposed on a particular class, it is a new substantive rule and should be applied retroactively under Teague v. LaneRead the opinion.

Fernandez v. California

If a person objects to police making a warrantless search of his residence, and police physically remove him from the residence, the police can make a warrantless search with the consent of the remaining co-occupant. Under Georgia v. Randolph, a person’s objection to a search of a residence is not effective unless he is physically present. As soon as he is removed, his objection is also removed. Read the opinion.

State v. Granville

Polic cannot make a warrantless search of a cell-phone in a jail property room that is confiscated as part of a booking-inventory procedure and not incident to arrest. A person retains a legitimate expectation of privacy in the contents of his cell phone when the phone is being temporarily stored in a jail property room. Searching a person’s cell phone is like searching that person’s home desk, computer, bank vault, and medicine cabinet all at once. Read the opinion.

Barnes v. State (7th COA)

An in-person tip may provide enough reasonable suspicion to justify the detention and subsequent search of a suspect and the suspect’s vehicle. When a citizen-informer meets the police in person, the informer places himself in a position of accountability, and his information deserves to be given great weight. A detention based on facts supplied by a citizen-informer, which are adequately corroborated by the detaining officer, does not violate the Fourth Amendment. 

Also, the plain-view doctrine can authorize the warrantless search of a suspect’s entire vehicle. An officer’s observation of contraband or evidence of a crime in plain view inside an automobile can establish probable cause to conduct a warrantless search of the vehicle, including the glove compartment and center console. Read the opinion.

 

Medrano v. State (5th COA)

Chapter 273 of the Elections Code does not violate the separation of powers doctrine by granting the Attorney General power to prosecute election law violations. The Constitution gives the legislature authority to assign concurrent criminal prosecution duties to the Attorney General (AG). Giving the AG authority to prosecute election law violations does not remove any authority from prosecutors; it merely gives the AG the independent authority to prosecute one type of case in the absence of action by a local prosecutor. Because the duties of the AG are a hybrid between the powers of the executive and judicial branches, it is not a violation of the separation of powers doctrine for the legislature to grant the AG prosecutorial authority, so long as the legislature does not take away so much authority from county and district attorneys as to “practically destroy” the role of the prosecutor’s office. Read the opinion.

State v. Villareal (13th COA)

It was unconstitutional for police to perform a warrantless blood draw on the defendant based on his three prior convictions for DWI. The mandatory blood-draw statute in §724.012(b)(3)(B) of the Texas Transportation Code requires a no-refusal blood draw when a suspect has multiple DWI arrests, but the statute does not authorize warrantless blood draws. The court did not consider any implied consent arguments because it held that the State waived that argument when it stipulated at trial there was “no consent, no warrant” in the case. Read the opinion.

Hernandez v. State (7th COA)

A defendant’s confession was still voluntary even though it came after a detective said during her interrogation the defendant would never see her kids again if she didn’t tell the truth and that her cooperation might allow a judge to show her leniency. Coercive conduct alone doesn’t make a confession involuntary. The totality of the circumstances must show that the defendant’s will was overborne and her capacity for self-determination was critically impaired by the coercion. Read the opinion.

 

Ex Parte Coty

A forensic scientist's falsification of evidence in one case does not necessarily invalidate the evidence in all cases touched upon by that scientist. A due-process violation occurs when the evidence is both false and material. A five-part test will allow a falisty inference in favor of the defendant, and materiality must still be proven by the defendant as well. Read the opinion.

Smith v. State (1st COA)

When the State presented a defendant's disciplinary records from prison and probation as evidence, the State violated the defendant's Confrontation Clause rights by not calling the persons who put statements into those records. The disciplinary records contained subjective, detailed descriptions of incidents that were recorded by law enforcement personnel to establish specific facts and were therefore testimonial. Because the declarants were not available to testify at trial, the defendant’s Sixth Amendment rights were violated. Read the opinion.

 

Ex Parte Zavala - 4th COA

The Online Solicitation of a Minor statute is not facially unconstitutional just because one section requires proof the actor solicited a minor with the intent that the minor engage in sexual activity, while another section prohibits the defendant from arguing that there was no intent to actually meet the minor in person.  The gravamen of §33.021(c) of the Code of Criminal Procedure is the knowing solicitation of a minor to meet the person with the intent that the minor will engage in some form of sexual contact with that person. It does not matter what happens after the solicitation occurs because the offense has been completed. This is true even if the defendant was engaged in a fantasy at the time of the solicitation, with no intent that a meeting actually occur. Because the State is not required to prove that a meeting was intended, §33.021(d)’s prohibition against a defendant arguing lack of intent to meet does not conflict with §33.021(c). Read the opinion.

 

 

Wehrenberg v. State

The Court of Criminal Appeals held that the federal "independent source" doctrine is applicable in Texas. Like the attenuation doctrine, the independent source doctrine does not violate CCP Art. 38.23 because evidence that is initially discovered through illegal means is later legally acquired through the independent source. Read the opinion. 

Ard v. State - 14th COA

An officer's testimony that a detained alleged shoplifter was not free to leave while she was being questioned did not establish that the suspect was "in custody." Custody is not established during an investigative detention simply because the suspect is not able to leave until the investigation is completed. Even though the officer would have arrested her had she tried to leave, he never threatened to arrest her, and the officer’s unarticulated plan has no bearing on a custody analysis. 

Ex Parte Gill

When a defendant has been jailed more than 90 days without being chaged, a judge may not consider the safety of a victim or the community when setting bail. The language of CCP art. 17.15, which allows a judge to consider victim and community safety concerns in setting bail, is not imparted to CCP art. 17.151. The latter statute requires a defendant be released after 90 days through either a personal bond or a reduction of bail, and there is no language that considers the threat to a victim or the community. Additionally, it is not a violation of the separation-of-powers provision of the Texas Constitution for the legislature to require a court to release defendants under specific conditions.

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