Texas Court of Criminal Appeals
Smith v. State
No. PD-0230-24 11/20/25
Issue:
In a 2023 trial for aggravated assault, did the trial court’s policy of requiring all witnesses to wear masks violate the Confrontation Clause?
Holding:
Yes. Reviewing SCOTUS and CCA precedent, the Court observed, “Because a surgical mask affects the physical-presence element of the Confrontation Clause and the jury’s ability to assess demeanor, the trial court was required to make case-specific showings of fact that the mask mandate was necessary to further a public-policy interest.” Here, the Court found that the trial court did not make case-specific findings about why wearing masks was necessary and applied the policy to all witnesses regardless of individual necessity. Thus, “the trial court’s masking policy violated the defendant’s constitutional rights.” Read opinion.
Dissent (Schenck, P.J., joined by Yeary and McClure, JJ.):
“To be sure, the COVID-19 pandemic presented many courts with the same question concerning trials during the time in which state and national declarations of disaster were in effect; the answer to that question was uniform: Masking requirements do not violate a defendant’s confrontation rights. Now, this Court is presented with that question for a trial occurring post-pandemic. While the decision to require masks of all the trial’s participants and observers was imprudent and (we are told) evidently political, I do not believe the interference with the juror’s ability to observe witness demeanor somehow ripened into a Confrontation Clause violation. …Though improvident and improper, the mask requirement here nevertheless does not amount to a constitutional violation. I would hold that the mask requirement did not amount to a deprivation of the physical presence element in this case and [the defendant]’s confrontation rights were accordingly not violated.” Read dissent.
Commentary:
Now that we are well beyond the COVID-19-pandemic era, you are unlikely to encounter a universal mask mandate like the one at issue here. However, this case serves as an important reminder that in any situation where a witness could be considered not fully physically present at trial (such as if he or she testifies by remote means [such as Zoom] or if he or she still requires a mask for personal safety reasons [such as if the witness is immunocompromised]), it is imperative that the trial judge makes specific findings on the record as to why the particular accommodation is necessary (e.g., why the witness absolutely must testify remotely or wear a face mask), or else there is a dire risk that the situation will be deemed on appeal to have run afoul of the Confrontation Clause.
Joe v. State
No. PD-0423-23 11/20/25
Issue:
Is the Cargo Theft statute (Penal Code §31.18) materially different from the Organized Retail Theft statute (PC §31.16), such that the offense of cargo theft does not require proof of an activity beyond the acts inherent in stealing the cargo? Read opinion.
Holding:
No. The Court held that “the cargo theft statute is not distinguishable from the organized retail theft statute in its plain language.” Accordingly, like the organized retail theft statute, the cargo theft statute contains an “activity” element the State must prove, in addition to proving the acts inherent to the theft.
Concurrence (Parker, J., joined by Finley, J.):
“I join the Court’s opinion but write separately to respond to one claim made by Judge Yeary’s dissent and strongly implied by Judge Keel’s dissent. That claim is that Lang held that the retail-theft statute does not apply to the lone shoplifter. I do not read Lang’s construction of the retail-theft statute to be that narrow. Lang said, ‘[T]his statute does not apply to the conduct of an ordinary shoplifter acting alone.’ ‘Ordinary’ is an important word. Lang does not preclude a retail-theft conviction for a lone shoplifter if the shoplifter engages in an activity in addition to the theft, such as advertising the stolen goods for sale on the internet.” Read concurrence.
Dissent (Yeary, J.):
“The Court chooses to remain in the hole it dug in its unfortunate opinion in Lang, which interpreted our former Organized Retail Theft statute differently from the meaning of that statute’s plain and intelligible words—to not include or permit what it manifestly included and permitted: the prosecution of a lone actor. Now, the Court digs the hole deeper. But there is a way out. I would simply read the plain and intelligible words of both the former Organized Retail Theft statute and the Cargo Theft statute as they were written by our Legislature, and I would not try to change the meaning of those words to better comport with what the Court thinks the Legislature (collectively) might have been thinking when it voted to approve those words.” Read dissent.
Dissent: (Keel, J.):
“[T]he majority ignores the cargo-theft statute’s plain text. Instead, it adheres to our construction of an earlier version of the organized retail theft statute (“ORT”). That’s a mistake because (1) the two statutes are not identical, (2) they focus on different things, and (3) Lang’s reading of the ORT statute is at odds with the cargo-theft statute’s language and legislative history.” Read dissent.
Commentary:
The big takeaway here is that, just as the State must prove an action distinct from mere theft/shoplifting itself to substantiate a conviction for organized retail theft, the State will need to prove a “separate facilitative activity” apart from “the tasks inherent in stealing” cargo to attain a viable conviction for cargo theft. If you have one of these cases, take a close look at the evidence to see whether you can prove this extra “activity” element (e.g., with evidence that the defendant actually transported the cargo away). If not, consider an alternative charge, such as conventional theft or attempted cargo theft—neither of which require that additional proof.
Texas Courts of Appeals
Willrich v. State
No. 03-23-00804-CR 11/14/25
Issue:
In a capital murder trial, did the trial court violate the defendant’s right to confront the witnesses against him under the Confrontation Clause when the trial court admitted, through the testimony of an investigator, the co-defendant’s statement naming the defendant as a party, as well as a piece of paper on which the co-defendant had written the defendant’s name?
Holding:
Yes. The Court rejected the State’s argument that the evidence was not offered to identify the defendant as a party to the crime but only as background information to show how law enforcement began to investigate the defendant as a suspect. The Court reasoned, “In declaring the testimonial out-of-court statement of [the co-defendant] to be admissible as background evidence, too much damning information eroded judicial confidence that [the defendant] truly enjoyed his Sixth Amendment right to confront all of the witnesses against him.” Because this was a constitutional violation, the Court had to find beyond a reasonable doubt that the violation did not contribute to the defendant’s conviction. The Court held, “There is a reasonable possibility that the Crawford error moved the jury from a state of non-persuasion to one of persuasion on the issue of identity.” Read opinion.
Commentary:
The prosecutor and the trial judge in this case did just about all they could do to ensure that the jury considered the co-defendant’s statement and the piece of paper only for the purpose of their admission—i.e., to show why the police began to investigate the defendant, whom they were not aware of before—including by giving the jury specific limiting instructions to that effect both when the evidence was admitted at trial and in the jury charge. Notwithstanding those cautionary measures, and despite established precedent that permits admission of even a non-testifying co-defendant’s statements when the statements are offered for a purpose other than to show the truth of the matter asserted in the statements, the appellate court here relies on a passage from Langham v. State, 305 S.W.3d 568, 580 (Tex. Crim. App. 2010) to essentially find that, because the identifying information revealed was “too damning,” it was no longer just “background information” and the jury could no longer be trusted to consider it for only its proper purpose. Given that Langham was not a unanimous opinion (meaning, there are some dissenting opinions that the State might find useful) and that the CCA has more recently expressed that limiting instructions are valuable to restrict the jury’s use of this type of evidence to only its proper purpose (see Sandoval v. State, 665 S.W.3d 496, 531 (Tex. Crim. App. 2022)), there could be some fodder for an interesting petition for discretionary review to the CCA here.
Ex Parte Pulido
No. 09-25-00077-CR 11/19/25
Issue:
Was the defendant’s subsequent indictment for murder barred by double jeopardy because he had previously pleaded guilty to and completed deferred adjudication community supervision on a charge of reckless injury to a child, which was based on the same conduct as the murder?
Holding:
No. While a greater offense and any lesser-included offenses are generally treated as the same offense for purposes of double jeopardy, here the defendant “pleaded guilty to injury to a child before one of the elements of his alleged murder offense—namely, the death of [the complainant]—had taken place. So long as [the complainant] was alive, [the defendant] was not in jeopardy of being convicted of murder, and he cannot now be in jeopardy a second time without having been in jeopardy a first time.” Read opinion.
Commentary:
In comparing the elements and concluding that the two crimes at issue here are not the “same offense” for double-jeopardy purposes, despite that injury to a child can be a lesser-included offense of a murder charge based on the same underlying conduct, the appellate court here conducts a concise but thorough application of the Blockburger test and the Diaz exception regarding lesser-included offenses.
Note that there may be follow-up to this case after the defendant’s murder case proceeds to trial, assuming that the defendant is convicted, because the defendant also asserted a “multiple punishments” double-jeopardy claim. Although the appellate court rejected that argument at this stage as uncognizable on a pretrial writ (because the defendant has not yet been convicted and thus has not yet been subject to an additional punishment), the defendant will likely re-assert the claim on direct appeal of any conviction.
Lobo v. State
No. 14-24-00443-CR 11/18/25
Issue:
In a continuous sexual abuse of a young child case, did the trial court abuse its discretion when it designated the second person to whom the child outcried as the outcry witness?
Holding:
No. While it is true that the child first outcried to a teacher’s aide about one instance of sexual abuse by the defendant, it was not until the child spoke to a forensic interviewer that the child outcried about another instance of sexual abuse in addition to the one told to the teacher’s aide. “While [the child] outcried to [the teacher’s aide] about a solitary incident of abuse, the trial court could have concluded that [the forensic interviewer] was the proper witness for ‘the alleged offense’ because she was the first adult to whom [the child] outcried regarding multiple events of sexual abuse more than 30 days apart.” Read opinion.
Commentary:
As the appellate court reminds us here, Code of Criminal Procedure Article 38.072 (concerning the admissibility of hearsay outcry statements of abuse victims of numerous offenses, including sexual offenses) applies to statements of “the alleged offense”—meaning the actual charged offense, not any discrete or underlying acts or crimes. Thus, in this case, where the State charged the defendant with continuous sexual abuse of a young child, which required proof of multiple instances of sexual abuse committed over a timeframe of 30 days or longer, the proper outcry witness would be the first adult to whom the complainant outcried that multiple abusive acts had occurred over the requisite timeline. This is an important principle to keep in mind if you prosecute these cases because it is common for abuse victims to make partial or fractured outcries to multiple people, which can complicate the determination of who is the proper outcry witness for the charged offense.
Texas Attorney General Opinions
KP-0504 11/19/25
Issue:
Does the Commissioners Court of Fort Bend County have the legal authority to select a law firm to assist with redistricting county election precincts?
Additionally, may the County Attorney of Fort Bend County unilaterally make the decision to contract with a law firm of her choice without a formal order from the commissioners court?
Conclusion:
Yes to the first issue. No to the second issue.
The Fort Bend Commissioners Court may hire an outside law firm of its own choice to assist it in fulfilling its redistricting duties under Chapter 42 of the Election Code without interfering with or usurping the Fort Bend County Attorney’s statutory duties.
The County Attorney may not unilaterally contract with an outside law firm of her choice to assist the Commissioners Court in carrying out its redistricting duties under Chapter 42 of the Election Code. Read opinion.
Requested by:
Gary Gates, Chair of House Committee on Land and Resource Management
Announcement
There will not be a Case Summaries email next week due to the Thanksgiving holiday, but Case Summaries will return on December 5. TDCAA wishes all our members and readers a happy and safe Thanksgiving!