Texas Court of Criminal Appeals

Thomson v. State

No. PD-0507-22                               12/11/25

Issue:

Did the lower court of appeals have authority to abate a defendant’s appeal and order the trial court to hear the defendant’s motion for new trial in light of post-trial discovery and disclosure of impeachment evidence against the defendant’s arresting officer?

Holding:

No. The defendant’s motion for new trial was filed untimely, and the court of appeals did not have the authority to abate, including because the trial court had lost its jurisdiction over the defendant’s case by the time the new Brady information came to light. While the Rules of Appellate Procedure allows abatement in some circumstances, “abatement (and the jurisdiction it confers to the trial court) is proper when its scope is limited to creating or completing the record necessary for the court of appeals to address as grounds to review.” The individual justice who signed the order of abatement “was not empowered to issue judgments (invoking Rule 43 or any of its subordinate parts) while acting individually.” Relying on Rule of Appellate Procedure 44.4 “was erroneous because there was a complete failure to satisfy both of the [requirements] to invoke it.” Read opinion.

Commentary:

It is not clear whether this decision is intended to prevent many abatements that are now routinely ordered by intermediate appellate courts. Regardless of the scope of the decision, however, this should be very helpful to post-conviction prosecutors in reminding trial judges and appellate judges that they must have jurisdiction to be able to act. This decision speaks with apparent approval of abatements that have occurred in past cases, providing the following examples:

• a trial court’s refusal to permit a defendant to make an offer of proof;
• a trial court’s failure to conduct a proper Batson hearing;
• a trial court’s failure to make findings of fact that it was required to make.

After this decision, can an appellate court abate an appeal for a timely filed motion for new trial? In footnote 4, the court suggests that the answer to this question is “unclear.” This decision may be limited to circumstances when a motion for new trial was not timely filed. Prosecutors will have to wait to see if this decision is expanded to other types of cases. In the meantime, if a trial judge or appellate court is taking an action after a defendant’s conviction, this decision will provide great support if the court has no jurisdiction to take such an action.

Texas Courts of Appeals

Vaughn v. State

No. 03-24-00794-CR                   12/4/25

Issue:

Did the trial court err in allowing the State on the first day of trial to amend an indictment for displaying harmful material to a minor (Penal Code §43.24) to delete the words “intentionally and knowingly”?

Holding:

No. Section 43.24 does not include a mens rea element concerning the display of the harmful material and instead provides that a person commits an offense if he displays material that he knows “is harmful” and “is reckless about whether a minor is present who will be offended or alarmed by the display.” Therefore, the words “intentionally and knowingly” in the indictment are considered surplusage, and the Court concluded that any error in allowing the amendment would be harmless. The Court also noted that there is some confusion in the courts of appeals on how to address similar issues concerning changes made to charging instruments following the Court of Criminal Appeals in Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) and urged the Court of Criminal Appeals to resolve this issue. Read opinion.

Commentary:

In this case, the trial court permitted the State to delete from the indictment the culpable mental states of “intentionally and knowingly,” which is not necessary to the charged offense. The State argued on appeal that this was an “abandonment,” not an “amendment.” That is how the issue should have been addressed on appeal. The court of appeals instead engaged in a significant historical analysis, when it could have just focused on the concept of abandonment and/or relied upon the holding in Gollihar. The court reached the right result, but it probably strained way too hard over the issue.

Online Legislative Update Deadline

Access to TDCAA’s 2025 Online Legislative Update will close on December 31, 2025. Registration for the course can be found here. All participants—including those who already registered for the course but have not completed it—must complete the video in its entirety by December 31, 2025, to receive credit. No refunds will be issued.

While we can’t think of a better way to spend New Year’s Eve than diving into the newest Texas laws and statutes before the clock strikes midnight, we encourage our viewers to not wait to the last minute to complete this important course!