Texas Court of Criminal Appeals
State v. McDonald
No. PD-0006-25 4/16/26
Issue:
Does a defendant still have a Sixth Amendment right to counsel after a grand jury no-billed an intoxication manslaughter and failure to stop and render aid charges brought against her?
Holding:
No. One of the detectives who investigated a 2007 fatal hit-and-run collision for which the defendant was initially no-billed returned to the defendant’s house in 2018 to ask her questions about the incident, not knowing whether she was still represented by counsel. The defendant ended up talking to the officer about the crash, and the questioning resulted in her being reindicted. The trial court suppressed the statements, and the State appealed, arguing that the defendant’s right to counsel had terminated after her charges were no-billed and remained dormant for 10 years. The Court of Criminal Appeals noted that the Sixth Amendment right to counsel is both offense-specific and proceeding-specific. “Once charges are dismissed … the adversarial process terminates, and with it, the Sixth Amendment right to counsel.” The Court concluded that the defendant’s Sixth Amendment to counsel terminated with the no-bill, and therefore the statements she made to the detective were admissible in the reindicted case. Read opinion.
Commentary:
This decision should be very helpful to prosecutors who are faced with a setback in attempting to prosecute a case. The key here is that the first grand jury no-billed the defendant’s case, and it was dismissed. That distinguished the case from Frye, upon which defense lawyers have continued to rely in urging Sixth Amendment violations, even after charges had been dismissed against a defendant. Frye is discussed at great length by the court, and the Court makes clear that Frye is indeed an exception and a very unusual fact situation. Prosecutors or law enforcement should never dismiss cases and then attempt to interrogate defendants with the hopes of gaining a stronger case. But prosecutors can dismiss cases, and then freely re-file them, if it is clear that the re-indictment is not based upon a continuing desire to build a stronger case against the defendant.
State v. Barber
No. PD-0510-25 4/16/26
Issue:
Does an intoxicated driving offense occur in an officer’s presence or view under Code of Criminal Procedure Art. 14.03 if the officer arrived 40 minutes after the defendant has crashed and is no longer operating his vehicle?
Holding:
No. The Court disavows the holding on “presence or view” from the Court’s prior decision in State v. Woodard, 341 S.W.3d 404 (Tex. Crim. App. 2011). An officer at the scene of a fatal collision submitted a probable-cause affidavit for a search warrant to test the defendant’s blood for alcohol, a Liberty County judge issued a warrant, and the warrant was executed and blood drawn at a hospital in Harris County. The State argued that Code of Criminal Procedure Art. 14.03(d) gave the Liberty County officer the authority to arrest the defendant in Harris County for intoxication manslaughter because the warrantless exception in Art. 14.03(d) allows arrests for offenses occurring in his presence or in his view. “[W]hatever else the ‘presence or view’ language might mean, it plainly appears to exclude an officer who did not perceive the offense through one of his five senses and did not arrive at the scene until after the offense was complete and no longer being committed.” Read opinion.
Concurrence (Yeary, J.):
“I join the Court’s opinion. I write further only to suggest that, on remand, the court of appeals might consider, if necessary, whether Appellee even has standing to invoke the protections of Article 38.23(a), our statutory exclusionary rule.” Read concurrence.
Concurrence (Finley, J.):
“I write separately to debunk the dissenting opinion’s assertion that the Court ‘does not attempt to answer the suppression question upon which interlocutory appellate jurisdiction is based’—whatever that means. Read concurrence.
Dissent (Schenck, P.J., joined by Richardson, J. and Keel, J. in part):
“The question here is whether evidence establishing Barber’s intoxication can be introduced at his trial. The majority opinion avoids answering that question, though it throws a dark cloud over it in advance of a needless remand. Instead, it opines about ancillary questions concerning arrest powers. I disagree with its disposition in every respect and therefore dissent.” Read dissent.
Commentary:
This decision should not be a great obstacle to proceeding with intoxicated-driving prosecutions. Even if a defendant in an intoxicated-driving case is arrested without a warrant, and officers did not observe the defendant committing any part of the offense, the officer still might be able to arrest the defendant under Art. 14.03(a)(1) if the officer can articulate sufficient facts to show that the defendant was arrested in a “suspicious place.” See, e.g., Armstrong v. State, 713 S.W.3d 893 (Tex. Crim. App. 2025). If no such argument can be made under Chapter 14 of the Code of Criminal Procedure, however, officers will need to obtain an arrest warrant to arrest a defendant for an intoxication-related offense.
Texas Court of Appeals
Ortego v. State
Nos. 01-24-00878-CR 4/14/26
Issue:
Did the trial judge incorrectly refuse the defendant’s request to allow two witnesses to testify via Zoom?
Holding:
No. “The universal preference for in-person testimony is not an arbitrary rule and Texas practice is not an outlier.” The trial court did not err in refusing the defendant’s request for witnesses to appear by Zoom. In the defendant’s trial for continuous sexual abuse of a child, after the State rested, defense counsel told the trial court for the first time that he had a witness from out of state that he was “trying to set up a Zoom with.” The defense contended that it had the right to have a witness testify remotely and the State did not have confrontation rights. In response, the State pointed to Code of Criminal Procedure Art. 38.076, which has specific provisions for remote testimony from certain types of forensic analysts. Art. 38.076 requires agreement by the parties and approval by the trial court. The judge denied the defense request to have two witnesses testify via Zoom.
In a hearing on the defendant’s motion for new trial based on the Zoom denial, the judge distinguished the defendant’s reliance on an unpublished opinion, Harper v. State, 2024 WL 3579499 (Tex. App. — El Paso July 29, 2024, pet. ref’d). The 1st Court noted that “as best we can tell, [Harper is] the only Texas case to hold that a defendant had an enforceable right to present live remote testimony.” The Court declined to follow Harper, which had concluded there is no “per se prohibition” on remote testimony. “When we review the limits placed on remote testimony, it is clear that the ordinary form of evidence in a criminal trial is in-person testimony. Any time a party has an enforceable right to admit other types of testimony it is based on an exception found in a rule or statute. Because there is no statutory or rule-based exception for the remote testimony the [defendant] sought to admit here, we conclude he had no enforceable right to its admission and the trial court did not err by excluding it.” Read opinion.
Commentary:
Prosecutors might expect this decision to be reviewed by the Court of Criminal Appeals because it expressly disagrees with an unpublished decision from the El Paso Court of Appeals that addressed the same issue. Nevertheless, this decision is extremely thorough, well-researched, and well-reasoned. For the time being, prosecutors can rely upon this decision to object to the presentation of live remote testimony. The court notes that there are several limited bases for being allowed to present live remote testimony, and the decision supports an argument that any live remote testimony should be limited to those particular exceptions. This opinion may also be helpful to prosecutors—especially sexual abuse prosecutors—because it discusses whether a private party violates a defendant’s rights by accessing the defendant’s cell phone with consent.