Case Summaries

Each week, TDCAA staff members summarize the most important cases from Texas and federal criminal courts and provide insightful commentary on how those cases could impact the criminal justice system as well as a link to the opinions. Find a library of previous Weekly Case Summaries here.

Summaries

April 16, 2021

Texas Supreme Court

In re Luther

No. 20-0363                  4/9/21

Issue:

Was a temporary restraining order requiring a business owner to cease and desist from operating a salon for in-person services due to COVID-19 void and unconstitutional?

Holding:

Yes. The salon owner “could not know without analyzing a multitude of regulations—state, county, and city emergency orders referenced in the temporary restraining order, plus the federal guidelines they referenced—what conduct was prohibited at any given time the temporary restraining order was in effect.” Therefore, “the temporary restraining order failed to set forth the conduct required and the legal basis for its issuance in clear, specific, and unambiguous terms.” Read opinion.

Commentary:

This opinion does not represent a holding regarding the validity of any of the various regulations issued in response to the COVID-19 pandemic. Rather, it is a holding regarding the invalidity of the terms of the temporary restraining order, which did not specifically tell the salon owner what particular regulation she had violated.

Texas Court of Criminal Appeals

Martin v. State

No. PD-0563-19            4/14/21

Issue:

When a firefighter, in the line of duty, asks law enforcement for a safety check after seeing drug paraphernalia, guns, and flammable liquids in an apartment, is the officer’s entry into the apartment reasonable under the 4th Amendment, and can that officer’s discovery of drug paraphernalia in plain view provide probable cause for a search warrant?

Holding:

Yes. The Court declined to adopt the court of appeals’ conclusion that when a firefighter observes contraband in plain view during a lawful entry based on exigent circumstances, the firefighter can call upon a police officer to enter the dwelling and seize the evidence without a warrant as long as the exigency is ongoing. Instead, the Court concluded that the exigency allowed the officer’s initial entry, and once inside, his discovery of evidence in plain view shifted the focus from a safety focus toward a criminal investigation. “Given these circumstances, we need not reach the broader issue addressed by the court of appeals of whether an officer may always ‘step into the shoes’ of a firefighter during the course of an exigency to seize or observe contraband that is in plain view.” Read opinion.

Commentary:

Be very careful with this decision. Read it closely if you want to justify an officer’s entry of a residence or other structure at the request of the fire department. This opinion would not justify all such entries, and it may be that the State was aided by the fact that the trial judge issued favorable findings in support of the officer’s initial entry. For example, the result definitely could have been different if this was a State’s appeal or if the fire department had not asked for assistance in making sure that the premises were safe. Although the court refers to “exigent circumstances” throughout its opinion, the emergency referenced here was not the criminal activity, but the fire. There is nothing in this opinion regarding a fear that the illegal contraband was going to be consumed by the fire. After the first officer validly entered the residence on that limited basis, everything that he saw in plain view was the proper basis for a search warrant. If you want to read more about an officer’s ability to enter a home for non-law-enforcement reasons, look for the decision of the United States Supreme Court later this year in Caniglia v. Strom, in which the Court will address the application of the community-caretaking doctrine to a residence.

Becerra v. State

No. PD-0804-19            4/14/21

Issue:

If an alternate juror retires with the jury and is present during deliberations, at what point must a defendant object to the 13th juror’s presence: 1) when the jury retires to deliberate, or 2) when the defendant becomes aware that the alternate is present during deliberations?

Holding:

When the defendant becomes aware that the alternate has been sent into the jury room. While under Trinidad v. State, 312 S.W.3d 23 (Tex. Crim. App. 2010), the Court held that a defendant could forfeit a complaint about an alternate juror sitting in on deliberations by failing to object under Code of Criminal Procedure Art. 36.22, “the critical moment to object to jury misconduct error is not when the jury leaves the room to deliberate. Instead, an objection is timely made when the [defendant] becomes aware of the error.” Read opinion.

Commentary:

This decision is purely one about preservation-of-error. Nothing more. The court of appeals will now address the merits of the defendant’s claim—first raised in his motion for new trial. As an apparent violation of Art. 36.22, the error would be subject to a harm analysis.

Curlee v. State

No. PD-0624-20            4/14/21

Issue:

Does a playground on church premises, surrounded by a chain link fence that is not completely locked, fit the requirement under the drug-free zone law that the playground is “open to the public?”

Holding:

No. The Court noted that a fence, by itself, does not answer the question of whether a playground can be considered “open to the public” under Health & Safety Code §481.134(c) (Controlled Substances Act), but it concluded that the fact that the church’s attempt to secure the playground area was inadequate does not mean that it was “open to the public.” “The evidence in this case—the fact that the fence around the playground was not completely secure, an officer’s conclusory statement that the playground was open to the public, the fact that the playground was on the grounds of a church, and the fact that the playground could be seen through the chain link fence—is insufficient to show that the playground was ‘open to the public.’” Read opinion.

Concurrence (Keller, P.J., joined by Richardson, Slaughter, and McClure, J.J.):

“I agree with the Court that the church playground in this case was not ‘open to the public.’ But I think there is a way to resolve cases like this without going quite so deeply into the facts. There is nothing mysterious or obscure about the statute’s reference to playgrounds that are ‘open to the public.’ It means public playgrounds. I would hold that, at least in general, playgrounds that are privately owned are not ‘open to the public’ within the meaning of the drug-free zone statute.” Read opinion.

Dissent (Yeary, J.):

“[I]t seems to me that the jury in this case, exercising its prerogative to decide as a matter of fact whether [the defendant] committed his drug-possession offense within a thousand feet of a playground that was ‘open to the public,’ could rationally conclude that he did, just as a matter of ordinary English.” Read opinion.

Commentary:

If you wish to justify a drug-free-zone finding, closely read this opinion and make sure that the evidence can actually show beyond a reasonable doubt that the playground at issue in fact open to the public at the time the offense was committed. And keep in mind that, if the playground in the case is on private property, no amount of facts is going to satisfy Presiding Judge Keller and the judges that joined her concurring opinion.

Hudson v. State

No. AP-77,077              4/14/21

Issue:

Did the trial court correctly deny a challenge for cause when the defense believed a veniremember would in essence reverse the burden of proof on the defendant?

Holding:

Yes. The Court of Criminal Appeals addressed the line of questioning from the defense and concluded it merely confused the veniremember, and “at most [the veniremember]’s answers were vascillating or contradictory. In such circumstances, we defer to the trial court’s decision.” Read opinion.

Commentary:

The particulars of this decision will really only be of help to prosecutors trying a death penalty case and perhaps appellate prosecutors. But it is a good presentation of the law and application of that law.

Ex Parte Riles

Nos. WR-11,312-01 & WR-11,312-04               4/14/21

Issue:

Did the defendant’s subsequent writ alleging inadequate jury instructions satisfy the legal unavailability exception to the prohibition on subsequent writs in CCP Article 11.071 §5(a)?

Holding:

Yes. The Court concluded “[t]he mental health evidence that [the defendant] presented at his trial is the type of evidence that both this Court and the [U.S.] Supreme Court [in Penry] have come to regard as the kind of ‘two-edged’ mitigating evidence calling for a separate, mitigation-focused jury instruction.” Because of this, the Court held the lack of the jury instruction was harmful and vacated the defendant’s death sentence and remanded the case for new punishment. Read opinion.

Dissent (Slaughter, J. joined by Richardson and Yeary, JJ.):

“To be clear, I wholeheartedly believe that incompetent inmates should have the right to zealous legal representation for their post-conviction proceedings.… I write to express concern for those who may, because of their incompetence and lack of an appointed guardian ad litem, have attorneys who act with a sense of legal justice but who are not acting in their client’s best interest or in accordance with their wishes. This is an area where the Legislature could consider stepping in to ensure that prison inmates adjudged incompetent are appointed someone who will represent his or her best interests and not just legal interests.” Read opinion.

Commentary:

Judge Hervey’s majority opinion is not remarkable. It is a straightforward and brief application of the law regarding Penry error in a post-conviction writ of habeas corpus. What is remarkable about this case is that it apparently took the defense several decades to make the claim. And perhaps that is part of the point of Judge Slaughter’s dissenting opinion.

Ex Parte Garza

No. WR-78,113-01

Issue:

Was trial counsel’s failure to thoroughly investigate the defendant’s background for mitigation purposes a basis for an ineffective assistance of counsel claim?

Holding:

Yes. “We recognize that the aggravating evidence is substantial … [b]ut we think that the habeas mitigation evidence would have provided jurors with important context about [the defendant]’s life. …” Read opinion.

Dissent (Keller, P.J. joined by Slaughter, J.):

“If the evidence [the defendant] has now presented is enough to entitle this gang-leading, lifelong-criminal, murderer of six to a new punishment hearing, it is hard to imagine it being insufficient in any case.” Read opinion.

Commentary:

Judge Hervey’s majority opinion acknowledges that this is a “close case.” The bottom line is that, if you are handling a death case on a post-conviction writ of habeas corpus, and the defendant raises a claim that his defense counsel did not sufficiently investigate and raise mitigating evidence, get ready. You are in for a battle.

Ex Parte Mallet

No. WR-90,986-01

Issue:

Did the defendant, who pleaded guilty to delivery of a controlled substance in Penalty Group 1, meet the standard for actual innocence?

Holding:

Yes. “Based on the record, the trial court has determined that [the defendant] has established by clear and convincing evidence that he is actually innocent.” Read opinion.

Concurrence (Richardson, J. joined by Hervey, Newell, and Walker, JJ.):

“A police officer’s deceit, perjury, and continued wrongdoing lie at the heart of this case. This Court’s precedent and the complete lack of evidence here demand actual innocence relief.” Read opinion.

Commentary:

To learn about why this defendant was granted relief, read Judge Richardson’s concurring opinion. Actual innocence is a difficult claim to make successfully, but the defendant made it here.

Martinez v. State

No. PD-1215-19            4/14/21

Issue:

Did the court of appeals misapply the four-factor test in Brown v. Illinois, 422 U.S. 590 (1975) in determining whether the taint of the defendant’s illegal arrest was sufficiently attenuated to allow admission of his confession?

Holding:

Yes. The Court found that while one factor under Brown weighed in the State’s favor (Miranda warnings were given), the other three factors favored the defendant, in particular, flagrancy of the official misconduct. “[T]he surrounding circumstances show that the police misconduct was flagrantly abusive. When [the defendant] invoked his right to counsel, [officers] announced that he was under arrest for murder, handcuffed him, confined him to a holding cell, and chained him to a bench. There was no evidence that [the defendant] was a flight risk, that there was no time to get an arrest warrant, or that some other urgency justified the warrantless arrest. … [T]he arrest and its surrounding, middle-of-the night circumstances seemed designed to cause fear, surprise, and confusion for the purpose of getting a confession.” Read opinion.

Commentary:

If you want to win an attenuation-of-the-taint argument under Brown v. Illinois, your work had better not begin on appeal. The facts must be heavily developed at trial regarding Brown’s four factors.

Texas Courts of Appeals

Dugar v. State

No. 09-19-00098-CR                  4/7/21

Issue:

Does a police officer have reasonable suspicion for a stop under the “maintain a single lane” statute if a driver crosses a clearly marked lane but does not do so when other vehicles are present? Additionally, do gaps in the chain of custody render blood draw evidence inadmissible at trial?

Holding:

Yes. While the Court did not address the split among the intermediate courts, it held a reasonably objective police officer could have interpreted Transportation Code §545.060 to prohibit “failing to maintain a single lane when it [is] practical for the driver to do so.” Based on this interpretation, the officer could have formed reasonable suspicion required for the stop. Regarding blood evidence admissibility, the Court concluded, no, “‘gaps in the chain of custody go to the weight of the evidence, not admissibility when the testimony in the trial shows what happened with evidence at the beginning and end of the chain.”  Read opinion.

Commentary:

This decision will almost certainly be reviewed by the Court of Criminal Appeals, and perhaps we will finally learn whether the interpretation of the statute by the non-binding, plurality opinion in Leming v. State was accurate. Until then, there is a great deal of differences across the state as how this statute should be interpreted.

David v. State

No. 08-18-00059-CR                  4/12/21

Issue:

Was the evidence sufficient for a tampering conviction when the defendant was in a bathroom where officers found marijuana in the toilet, and was the marijuana evidence altered or destroyed because it was mixed with toilet water and fecal matter?

Holding:

No. There were “three individuals … present, all with access to the bathroom, each had an opportunity and access to the toilet … and [f]or the jury to conclude … [the defendant] placed the marijuana in the toilet by his mere presence would … be … mere speculation.” The Court also concluded that “the State failed to present any evidence from any witness or expert demonstrating the toilet water had indeed altered or destroyed the marijuana.” Read opinion.

Commentary:

The court of appeals states, “Common sense tells us that water does not necessarily alter everything it touches.” Do the justices know what toilets are used for? Show of hands. Who here has eaten food after dropping it in the toilet? (Your pets don’t count). Wouldn’t a juror be justified in finding that such an item had been altered or destroyed? Might a juror reasonably say that such an item (which one is going to put in one’s mouth) is “changed” or “modified” or “ruined” or “rendered useless.” This decision underscores how very difficult it has become to successfully obtain and hold onto a conviction for tampering with evidence.

Texas Attorney General Opinion Request

RQ-0403-KP     4/9/21

Issue:

Does a county attorney have the authority to file a lawsuit against a city to enjoin a violation of a restriction contained in a properly recorded plat of property within the county?

Requested by:

Dee Hobbs, Williamson County Attorney

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to Stephanie Huser.