An appellate court may not reform a trial court's judgment to reflect a conviction for an unrequested lesser-included offense that was not submitted to the jury, when the appellate court decides that the evidence is insufficient to support the jury's guilty verdict for the greater offense but is sufficient to support a conviction for the lesser-included offense. A court of appeals may reform the judgment to reflect a lesser-included offense only when the jury is instructed on the lesser-included offense or one of the parties asked for but was denied such an instruction. Allowing reformation without requesting a charge or charging the jury would allow the State to rescue a trial strategy that overreaches by obtaining a conviction for the greater offense. Haynes v. State, PD-1923-06.

A statue of Baby Jesus does qualify as a deadly weapon under PC §1.07(a)(17)(b).Based on the victim's trial testimony and undisputed evidence that the statue was broken during the struggle and blood was found on the outside and inside of the statue by police, the evidence is sufficient to show the defendant used or intended to use the statue in such a way that it was capable of causing death or serious bodily injury. Padilla v. State, 11-06-00230-CR.

The trial court's omission of restitution and court costs from the oral pronouncement of sentence bar the court from ordering in the written judgment that the defendant pay restitution and court costs. Restitution and court costs are punishment, so they must be included in the oral pronouncement of sentence to be properly included in the written judgment. However, appointed attorney's fees are not a sentencing issue and need not be pronounced orally to be properly included in the written judgment. Weir v. State, 03-07-00083-CR.

A state jail felony qualifies as an underlying felony for purposes of PC §46.04 - Unlawful Possession of a Firearm. The distinction between state jail felonies and other felonies does not appear in the statute governing unlawful possession of a firearm. Because there is no indication tha the legislature intended for the term "felony" not to include state jail felonies in PC §46.04, the general definition of "felony" in PC §12.04, which includes state jail felonies, should be followed. Tapps v. State, 03-06-00468-CR.

Evidence that the defendant met the profile of a drug courier and a positive alert by a narcotics dog was not factually and legally sufficient to prove money in the defendant's possession was derived from criminal activity. The State failed to present any credible evidence that infers the defendant was involved in any drug transaction, sale, or delivery at or around the time he was arrested. Profile characteristics do not establish reasonable suspicion and are insufficient to establish a nexus between the money and some criminal activity beyond a reasonable doubt. Alonzo v. State, 07-06-0420-CR.

Transp. Code §550.041(a) does not limit an officer's authority to investigate a wreck if the officer does not know before he gets to the scene that the accident resulted in injury, death, or property damage of at least $1,000. The statute actually expands the circumstances where an officer may investigate wrecks and file charges. Moreover, according to Transp. Code §550.062, once an officer is dispatched to an accident scene, he has the duty to investigate and file a report within 10 days. Alonzo v. State, 03-06-00761-CR.

The Texas Supreme Court has jurisdiction to hear the State's challenge to a juvenile suppression hearing. The Supreme Court has jurisdiction to hear cases where the court of appeals has held differently from a prior decision of another court of appeals on an issue that should be clarified to remove uncertainty or unfairness. Here, the court of appeals held differently than other courts of appeals and the Court of Criminal Appeals in suppressing a murder weapon for a Miranda violation, so the Supreme Court had jurisdiction. In re H.V., 06-0005.

Kentucky's lethal injection protocol does not violate the 8th Amendment's ban on cruel and unusual punishment because it ooes not create a substantial or objectively intolerable risk of serious harm. The three-drug protocol is not objectively intolerable because it is widely employed by the federal government and other states. Also, the risk of an inadequate initial dose and IV problems are not so substantial or imminent to violate the 8th Amendment because of the safeguards in place. In addition, there is no feasible, alternative method that can be readily implemented which can significantly reduce the risk of severe pain. Baze v. Rees, No. 07–5439.

The district attorney's advisory letter, which advised 8-liner operators that it is a criminal offense unless all payouts for winning are in the form of non-cash merchandise prizes, toys, or novelties, was admissible to show the defendant's intent to participate in criminal activity. The letter was not offered as an accurate statement of gambling law; rather, it was offered to show the defendant chose to continue her unlawful conduct after being advised by the district attorney it was illegal. Her decision to continue to operate 8-liners was not dependent on the truth of the letter. Pardue v. State, 06-07-00112-CR.

It was reasonable to detain the defendant for a total of 45 minutes after the initial traffic stop while waiting for a drug dog to arrive to search the defendant's car. The initial investigative detention was reasonable because the officer had acquired articulable facts that, when combined with rational inferences from those facts, led him to reasonably believe that the defendant was actually engaged in criminal activity. Also, the 20-minute detention after the defendant denied consent to search his vehicle was reasonable because the officer diligently pursued a means of investigation that was likely to quickly dispel or confirm his suspicions by immediately attempting to locate a drug dog. Love v. State, 06-07-00147-CR.

PC §42.07(a)(7) - Harassment is unconstitutionally vague because a person of ordinary circumstances cannot tell what is prohibited and what is not. In addition, the statute is vague because it uses the terms "annoy" and "alarm" which are inherently vague and because the standard of conduct the statute specifies is dependent on each complainant's sensitivity. In addition, the statute does not define the term "repeated" or indicate the requisite frequency of the repeated communications. Karenev v. State, 2-05-425-CR.

The prosecution improperly bolstered its key witnesses by personally asserting the credibility of the government agents. It is impermissible per se for a prosecutor to offer personal assurances to the jury that government witnesses are telling the truth or to tell the jury that law enforcement witnesses should be believed simply because they were doing their job. The remarks affected the defendant's substantial rights and seriously affected the fairness, integrity, and public reputation of his trial. U.S. v. Garcia, 07-40245.

Evidence which was seized under search warrants that were issued based on information obtained as result of criminal trespass should not be excluded under CCP art. 38.23(a). The evidence was properly admitted because the private citizen's entry into the defendant's apartment was reasonable under the emergency doctrine. Under the CCA's recent ruling in Miles v. State, 241 S.W.3d 28 (Tex. Crim. App. 2007), the citizen's trespass was lawful because a police officer standing in the citizen's shoes and knowing what he knew would have been objectively warranted in believing an emergency existed. Pitonyak v. State, 03-07-00131-CR.

The "forgiveness doctrine", codified in Local Gov't Code §87.001, does not bar the removal of a county officer, who has been convicted of a felony, if the conviction occurred before the officer's election. Tex. Const. art. XVI, §2 directs that laws be made to exclude those convicted of high crimes from public office. The legislature did so by rendering, under Elec. Code §141.001(4)), an individual convicted of a felony ineligible for office whether the conviction occurs before or after his election. Because the Local Gov't Code is superseded by the Texas Constitution, the "forgiveness doctrine" is limited to civil removal of officers under Local Gov't Code Chapter 87(b). In re Bazan, 06-0952.

Because the trial court lacked authority to stack the defendant's deferred adjudication term onto his prison sentence, the court of appeals was correct when it deleted the cumulation order. Precedent shows that this has always been the appropriate remedy and implicitly demonstrates that an unlawful cumulation order does not constitute "reversible error" as provided in CCP art. 44.29. Beedy v. State, PD-1224-06.

The defendant's confrontation clause rights were not violated by allowing a child witness to testify by closed-circuit television. The state established that the witness would be unavailable to testify under CCP art. 38.071 because he would suffer undue psychological or physical harm through his involvement in the trial. In addition, the defendant had the opportunity to cross-examine the witness via CCTV. Gaitan v. State, 2-06-399-CR.

The defendant's videotaped statements were admissible because they were the product of an unlawful arrest and the defendant did not waive his Miranda rights. The videotaped statements were not the product of an unlawful arrest because the defendant was not in custody at the time he made the statements. The defendant voluntarily accompanied police to the police station. He also consented to being handcuffed after being told numerous times he was not under arrest and the handcuffs were for the officer's protection. Even though the defendant was not in custody and waiver of his Miranda rights is therefore not necessary, the defendant implicitly waived his rights by answering officers' questions after he read and indicated he understood his rights. Turner v. State, 14-06-01153-CR.

The International Court of Justice's Avena judgment and the President's Memorandum to follow the ICJ's ruling do not constitute enforceable federal law that pre-empts state limitations on the filing of successive habeas petitions. A treaty is not binding domestic law unless Congress has enacted statutes implementing it or the treaty is self-executing once ratified. The ICJ statute is not self-executing, and no legislation implementing it has been enacted. Because Congress has not enacted legislation to bind domestic courts by the treaty, the President is implicitly prohibited from unilaterally making treaty obligations binding on domestic courts. Medellin v. Texas, 06–984.

The court did not err by denying the defendant's request for post-conviction DNA analysis and by denying his motion for a bench warrant so he could participate in the DNA hearing. The defendant failed to prove beyond a reasonable doubt that he would not have been convicted if exculpatory DNA results were obtained because the record contains sufficient other evidence connecting the defendant to the crime as a party. A defendant has no right to be at a hearing for post-conviction DNA testing because it is a collateral proceeding. Yarbrough v. State, 10-07-00024-CR.

The reference to "any and all vehicles owned and, or controlled by" the defendant "which are located on the property named" in the affidavit and warrant to search a hotel room is sufficiently particularized to uphold the search of the defendant's vehicle. The officers acted reasonably in assuming that the defendant, who had control and access to the motel room for which probable cause is not challenged, had control over the vehicle, and there was probable cause set forth in the affidavit to support a search of the defendant's vehicle. Hedspeth v. State, 03-07-00269-CR.

Unlike when a Confrontation Clause violation arises from the denial of a defendant's right to impeach a witness for bias, when inadmissible hearsay testimony is introduced, the government must show beyond a reasonable doubt that the tainted evidence did not contribute to the conviction. U.S. v. Alvarado-Valdez, 99-40370.

The placement and monitoring of a tracking device on the defendant's vehicle by U.S. Air Force personnel was not an unlawful search even though the placement was not authorized by a state district judge. There was no violation of the Posse Comitatus Act because the military is authorized to use military resources on civilians if there is an independent military purpose for their involvement. Also, the Air Force was authorized to track the defendant based on military rules and regulations because the defendant had access to the Air Force base. In addition, a state district judge did not have to authorize the tracking device because no Texas statute governs the use of tracking devices by federal agents. Finally, monitoring the defendant's vehicle did not violate the 4th Amendment because the rural ranch property in question falls squarely within the definition of "open fields" in which there is no expectation of privacy. Davidson v. State, 03-06-00717-CR.

The prosecution of the defendant for attempting to murder his mother-in-law was not barred by double jeopardy because the judge admitted evidence of the attempted murder in his previous trial for the murder of his wife. The evidence of the attempted murder was admissible in the murder trial as same transaction contextual evidence. Because the defendant was not prosecuted for the attempted murder in his murder trial and the trials were for different victims, double jeopardy does not bar the defendant's prosecution. Milner v. State, 01-07-00381-CR.

The defendant committed a traffic offense by weaving into oncoming traffic, even though there were no clearly marked lanes, thereby creating reasonable suspicion for a traffic stop. Even though the defendant did not violate Transp. Code §545.060(a) because there were no marked lanes, the police had reasonable suspicion to stop the defendant for violating Transp. Code §545.051, which requires a motorist to drive on the right side of the road unless passing another vehicle. Doyle v. State, 01-06-01103-CR.

The court of appeals correctly determined that Transp. Code §545.421 (fleeing a police officer) is not a lesser-included offense of PC §38.04 (evading detention with a motor vehicle). Even though the court of appeals used the term "functional equivalence," the court employed the same two-step method of conducting lesser-included offense analyses that the Court of Criminal Appeals laid out in Hall. Farrakhan v. State, PD-1984-06.

The defendant should have been prosecuted under Transportation Code §543.009(b) - (failure to appear for a traffic ticket) instead of PC §38.10(a) - (failure to appear). The two statutes are in pari materia and the defendant should have been prosecuted under the Transportation Code because it more specifically proscribes the defendant's conduct. Additionally, due process and due course of law require prosecution under the Transportation Code because it carries a lesser punishment than the Penal Code. Azziz v. State, PD-010-07.

The court held that it did violate the defendant's due process rights to hold the defendant in criminal contempt for each of the defendant's thirteen refusals to answer. Due process only allows one conviction for contempt. Where a witness indicates outside the jury's presence that he will not answer any questions and afterwards consistently maintains that position before the jury by refusing to answer any questions only one contempt occurs. The prosecution can not make the witness liable for multiple contempts by putting the witness on the stand and getting him to refuse to answer multiple questions after the witness has previously indicated he will not testify. Ex parte Thompson, AP-75,720.

Even when a defendant does not object to the admission of evidence seized in a search, he is still entitled to a jury instruction under CCP art. 38.23(a). A defendant's failure to object to the admission of evidence does not waive his right to a CCP art. 38.23 jury instruction. The defendant may receive an instruction if the evidence raises a factual issue that is material to the lawfulness of obtaining the evidence. Holmes v. State, PD-1050-07.

The erroneous admission of a victim's hearsay statement to the police through an officer's testimony was not harmful to the defendant during the punishment phase. Even though the statements indicated the defendant's racial intolerance and bigotry, and may have violated Crawford, they were not harmful because of the overwhelming amount of other evidence of the defendant's guilt and insensitivity to his victims. Wall v. State, 13-02-636-CR.

Evidence of a crime committed during an illegal detention is not barred by the exclusionary rule. The alleged illegality of an arrest is irrelevant to any crime committed during the arrest. Evidence that the defendant destroyed a crack pipe did not exist before the arrest and therefore could not be obtained in violation of the law. Bryan v. State, 07-05-0461-CR.

The assessment of two sentences for possession of methamphetamine in the defendant's truck and in the defendant's house violated double jeopardy. Because the allowable unit of prosecution in this case is the methamphetamine, and because the defendant's possession of all of the methamphetamine was in the course of the same transaction and seized by the officers while serving the search-and-arrest warrant to the defendant and his property, the possession of the methamphetamine in the truck and and the possession of methamphetamine in the house were not separate offenses. Fenoglio v. State, 2-07-001-CR.

Statements made to a doctor about who caused the complainant's injuries and how the defendant undressed before sexually assaulting the complainant were admissible under T.R.E. 803(4) as statements made for the purpose of medical diagnosis or treatment. Such statements concerning the inception or general character of the cause or external source of the injury, insofar as reasonably pertinent to diagnosis or treatment, are admissible hearsay under T.R.E. 803(4). Guzman v. State, 10-06-00315-CR.

A mistrial should not have been granted once a juror realized, after seeing the defendant drive across the juror's yard in a video of the defendant's car-chase, that the defendant was the previously unknown person who had driven through the juror's yard, thereby making him a victim of the defendant's extraneous conduct. There is no implied bias when it is discovered in the middle of a punishment trial that a juror is a victim of the defendant's extraneous (misdemeanor-level) conduct that requires granting a mistrial. Also, the denial of a mistrial was not an abuse of discretion because the trial court concluded the juror would remain unbiased based on his repeated assertions. Uranga v. State, 06-07-00017-CR.

Where the trial court imposes a valid sentence, withdraws it, and imposes a harsher sentence after considering enhancements, double jeopardy is not violated. Because the defendant was required to be sentenced as a habitual offender, the initial sentence was not valid and lawful when it was pronounced and double jeopardy does not apply. In addition, a trial court may modify a sentence if the modification is made on the same day as the assessment of that sentence and before court adjourns for the day. Grant v. State, 03-06-00765-CR.

The holding of Teague, which limits the kinds of constitutional violations that entitle an individual to federal habeas corpus relief, does not limit the authority of a state court to provide a remedy for violation deemed retroactive by Teague. eague is based on statutory authority that extends only to federal courts applying a federal statute; it cannot be read as imposing a binding obligation on state courts. The Teague rule was intended to limit federal courts' authority to overturn state convictions, not to limit a state court's authority to grant relief for violations of new constitutional law rules when reviewing its own state's convictions. Danforth v. Minnesota, 06–8273.

The evidence was sufficient to convict for felony injury to a child when the State showed that guardians slowly starved two boys in their care. Attempts to conceal the guardian's treatment of the boys along with testimony about the severity of the malnutrition by a hospital pediatrician permitted the jury to find the boys suffered serious bodily injury because the guardians intentionally and knowingly failed to provide them with adequate nutrition and medical care. (In a companion case, the court affirmed the husband's conviction for felony injury to a child, rejecting his complaint about admission of a videotaped interview between the boys and CPS workers.) Baldwin v. State, 01-06-859-CR.

The 2004 version of Penal Code §39.04 (improper sexual activity with person in custody) does not require the State to allege and prove that the victim was either an "adult offender" or a "juvenile offender". §39.04 unambiguously prohibits a peace officer from engaging in sexual contact with any individual in custody, "adult or juvenile, guilty or innocent, and ... the legislature did not intend to excuse such conduct if the individual is thereafter released from custody without being accused of a crime." Pastrano v. State, 03-07-162-CR.

The court of appeals did not apply the correct harm analysis in considering the defendant's argument that the jury charge allowed him to be convicted on less than a unanimous verdict with allegations of multiple sex acts against his two stepdaughters. The Court agreed with the defendant that the court of appeals improperly placed the burden on the defendant when it had concluded that the State had introduced evidence to support all three paragraphs. "To dispel any lack of clarity in our cases, we affirm that burdens of proof or persuasion have no place in a harm analysis conducted under Almanza," Judge Womack wrote for the majority. Warner v. State, PD-1680-05.

A not-guilty plea from a capital-murder defendant does not sufficiently raise the issue of identity to justify post-conviction testing for the presence of a third party's DNA. Also, a defendant does not have the same right to present evidence of a third-party's guilt in a post-conviction DNA proceeding as he does at trial. Although a defendant is entitled to present evidence of third-party guilt at trial, that entitlement does not carry over into CCP Chapter 64 proceedings dealing with post-conviction DNA testing. A defendant has no constitutional right to post-conviction DNA testing to determine the presence of a third-party's DNA. Prible v. State, AP-75,519.

A jury in a capital murder case did not commit misconduct by considering Biblical scripture during punishment phase deliberations. Without deciding whether the foreman's reading from the Bible should be considered an "outside influence" on jurors, the Court ruled that there was no reasonable evidence in the record that the Bible passage affected the jurors' verdict of death. Lucero v. State, AP-75,247.

The legislature did not write an unconstitutionally overbroad definition of "adulterants and dilutants," which allows the State to include the entire contents of a toilet bowl in determining the punishable weight of methamphetamine seized from a defendant. Health & Safety Code §481.002 defines the criminal offense of possession of a controlled substance with sufficient clarity and in a way that prevents arbitrary and discriminatory enforcement. Ex parte Kinnett, No. AP-75,611.

Dallas prosecutors did have a rational and non-discriminatory explanation for peremptory challenges against two African-American jurors under Batson. Although the case presented "a closer question than the court of appeals acknowledged in its analysis," the Court concluded that there was insufficient evidence to overturn the trial judge's ruling. Disproportionate use of peremptory challenges against minority members of the jury panel is not alone enough to find a Batson violation. The Court also rejected the defendant's argument that the court of appeals should have taken judicial notice on appeal of a Dallas Morning News study that showed a pattern by Dallas County of exercising peremptory challenges in a racially discriminatory way. Watkins v. State, PD-1438-06.

Texas' capital murder statute, under which the defendant was convicted for stomping on his pregnant girlfriend's abdomen and causing the death of her two fetuses, is constitutional. The facts presented at trial did not support the defendant's argument that the statute violates equal protection by creating an exception to prosecution for mothers but not fathers of unborn children. The Court concluded that for the defendant to raise a valid equal protection argument, the jury would have had to believe that the girlfriend was cooperating with the defendant's efforts to terminate the pregnancy. The jury could instead have reasonably concluded that the girlfriend's injuries resulted from the defendant's abusive acts, Presiding Judge Keller wrote. Flores v. State, PD-0265-07.

It was not error to allow attorneys pro tem, appointed because of a conflict of interest with the previous district attorney, to continue the defendant's prosecution once a new, conflict-free district attorney was elected. The appointment of an attorney pro tem is dependent upon the terms of the appointment order, not the duration of district attorney's disqualification. In addition, the new district attorney did not object to allowing the attorneys pro tem to continue prosecuting after he took office only nine days before trial, which was delayed because of defense-requested continuances, and the attorneys pro tem had spent 21 months preparing the case. Coleman v. State, PD-0072-07.

The defendant's written statement was obtained in violation of his 5th Amendment right to remain silent. The defendant's statement to police that he did not want to talk to the police anymore was an unambiguous, unequivocal, and unqualified assertion of his right to remain silent. The police did not scrupulously honor the defendant's assertion of his right to remain silent. Therefore, the subsequent written statement was inadmissible at trial. Judge Meyers dissented without opinion. Ramos v. State, PD-0921-06.

Once a defendant has been denied relief in his initial state habeas proceeding and denied relief in his federal habeas proceeding, the Court of Criminal Appeals does have the authority to revisit the state writ application under T.R.A.P. 79.2(d). An individual state retains the authority, if it chooses, to revisit one of its own judgments if there is a compelling reason to believe that it may not have been correct on original submission. Ex parte Moreno,AP-75,748.

A concurrent-causation jury instruction, which defined intoxication as the "introduction of alcohol, operating either alone or concurrently with an unknown drug," improperly expanded on the allegation in the indictment that the defendant was intoxicated from only alcohol. The jury charge authorized the jury to convict if it rejected the defendant's theory that intoxication was caused solely by an unknown drug but still found that the appellant's intoxication was caused by a combination of alcohol and the unknown drug. A charge does not improperly expand on the allegations in the indictment when the charge defines intoxication in terms of whether "the defendant [was] intoxicated with alcohol, either alone or in combination with a drug that made her more susceptible to alcohol." Otto v. State, PD-1311-06.

The trial court was required to order the defendant's separate fines for 13 counts of barratry that arose out of the same criminal episode to run concurrently because the concurrent sentences section of PC §3.03(a) applies to the entire sentence, including fines. State v. Crook, PD-0001-07. Link to Judge Cochran's dissenting opinion.

Evidence of the defendant's unrelated, 20-year-old murder conviction was not relevant to prove motive or context under T.R.E. 404(b). The prior conviction was not relevant to motive because the State presented no evidence that the prior conviction motivated the defendant to threaten the complainant with harm. Likewise, the prior conviction was not admissible as background contextual evidence to show the victim's state of mind because the victim's state of mind is irrelevant to prove the elements of the offense and it was inherently prejudicial. Pollard v. State, 04-06-00844-CR.

The trial court abused its discretion by admitting a State expert's testimony on the effects of methamphetamine because the expert's testimony was merely speculative and thus unreliable and irrelevant under T.R.E. 702. The expert did not tie the science to the facts of the case, and the use of hypotheticals unrelated to the facts negated his testimony's probative value. Acevedo v. State, 04-06-00098-CR.