Texas Court of Criminal Appeals
Ex parte Charette
Nos. PD-0522-21 through -0525-21 8/20/25
Issue:
Does Government Code §571.171, which authorizes the Texas Ethics Commission (TEC) to refer potential election violations to local prosecutors, require an investigation by and referral from the TEC before a state prosecutor can proceed?
Holding:
No. On rehearing, the Court concluded: “We reject the categorical claim that no prosecution can be brought to enforce criminal laws concerning the conduct of elections simply because their subject matter may overlap with civil jurisdiction conferred on the TEC.” The Court noted that the Legislature has not taken any action to limit the role of prosecutors in election law cases. “This is telling and unhelpful (if not fatal) to [the] appellant’s argument.” Read opinion.
Concurrence (Richardson, J., joined by Newell, J.):
“I respectfully concur only in the result because the Legislature has since amended the statutes [via Tex. Gov’t Code §23.002] relevant to the controversy and applied them retroactively.” Read concurrence.
Commentary:
In this majority opinion, the court provides unmistakable authority that there must be clear evidence from the Legislature that it intended for a prosecutor to wait for a non-prosecutor agency before the prosecutor can pursue a criminal charge. The majority opinion asserted that the Legislature does have the power to require a referral before a prosecutor can pursue certain criminal charges. But the majority refused to “embrace a reading of the statute that would strip the state’s county and district attorneys of their constitutional authority to bring an otherwise viable criminal charge where a plain, constitutional reading of the text is available.” The majority also noted that the Legislature has recently enacted legislation—and made it retroactive—that would prevent the exhaustion of civil or administrative remedies from being a prerequisite to a criminal prosecution. That recent legislative change provides the basis for the concurring opinion. The majority did not address the merits of that legislative change and whether the attempt to make the change retroactive constituted an ex post facto violation. This decision should provide great help for prosecutors who handle these kinds of specialized cases; prosecutors have more freedom in pursuing charges despite what might be occurring in a related civil or administrative context (much like administrative license revocation proceedings in intoxicated driving cases). For post-conviction prosecutors, the majority opinion is also significant because it deals with what kinds of claims can be raised (are cognizable) by way of a pretrial writ of habeas corpus.
Texas Courts of Appeals
Alvarez v. State
No. 08-24-00004-CR 8/13/25
Issue:
Was a geofence warrant seeking to capture only location data for suspects and potential witnesses of two shootings (resulting in the murder of a woman and serious bodily injury of her husband) within a 400-foot radius during a two-hour period narrowly drawn enough to satisfy the Fourth Amendment?
Holding:
Yes. The warrant “provided a degree of specificity that limited the information police would receive and minimized any infringement on privacy rights of persons who could not reasonably be regarded as either suspects or witnesses to the offenses.” Citing the Court of Criminal Appeals’ recent opinion in Wells v. State, 714 S.W.3d 614 (Tex. Crim. App. 2025), the Court ruled the trial court properly denied the defendant’s motion to suppress information obtained from warrants sent to Google (as well as to Gmail, Facebook, and Instagram). Read opinion.
Commentary:
On pages 13 and14, the court noted the very limited scope of the geofence warrant involved in this case—confined to a radius of just 400 feet and confined to a time frame of just two hours. On pages 14 and 15, the court further addressed the often-criticized statement in the warrant that most people carry cell phones. In that regard, the court followed the recent plurality decision of the Court of Criminal Appeals in Wells and distinguished Baldwin—the decision from the Court of Criminal Appeals that has been used to criticize the so-called boilerplate nature of such statements in search warrants involving cell phones. This decision could reveal an early trend in favor of geofence warrants. Prosecutors should keep their eyes on the Court of Criminal Appeals and the United States Supreme Court to see if those courts will further address the validity of geofence warrants. In the meantime, this decision is must reading for prosecutors who wish to pursue geofence warrants as a tool in the investigation of and resolution of violent crime. This decision is also important because it upholds warrants for searching a defendant’s email and social media accounts.
Jacobs v. State
No. 11-23-00269-CR 8/14/25
Issue:
Is a trial court required to make an express statement that it considered the full range of punishment before assessing punishment?
Holding:
No. An appellate court will presume that a trial court considered the full range of punishment unless the record affirmatively shows otherwise, which in this case, it did not. Read opinion.
Commentary:
The defendant appears to have brought this appeal because the trial judge stated that he was “limited” to assessing a 10-year prison sentence after revocation of the defendant’s community supervision. But this was not an indication that the trial judge was refusing to assess a lower sentence. The record otherwise did not show that the trial judge refused to consider the full range of punishment, and the opinion addresses the evidence that the trial judge heard before revoking the defendant’s community supervision and assessing prison time.