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.


March 1, 2024

Texas Courts of Appeals

Ex Parte Delong

Nos. 02-23-00322-CR; & -00323-CR                         2/22/24


Should the trial judge have considered a public safety report when considering the defendant’s request for habeas relief?


Yes. But while the trial court erred by not considering a public safety report, the defendant was not harmed by the error, and the defendant had not met his burden showing he was entitled to relief. Read opinion.


Per Texas Code of Criminal Procedure Article 17.022 (A.K.A. the Damon Allen Act), a magistrate is required to consider a public safety report before setting bail (which includes establishing bail at a fixed dollar amount or granting a personal bond) for a person charged with a Class B misdemeanor offense or higher, if the person was arrested on or after the effective date of the statute—January 1, 2022.  Because the statute is still relatively new, some trial courts may not yet be familiar with it or accustomed to adhering to it; thus, prosecutors should help prevent the error that occurred in this case by reminding trial judges in proceedings related to bail that this statute exists and that it is mandatory that the judges comply with it.

If, however, the record shows that the judge failed to consider the public safety report when setting bail, all is not lost.  As this case demonstrates, the judge’s error in that regard can be rendered harmless if the record otherwise supports the judge’s bail decision.  So although the defendant bears the burden of proof to show that his bail amount is excessive or that he is entitled to a personal bond, prosecutors should be diligent, as here, and offer as much evidence as they can concerning the bail-setting factors listed in Article 17.15 and Ex parte Rubac, 611 S.W.2d 848 (Tex. Crim. App. 1981), to counter the defendant’s evidence and substantiate the judge’s ruling.

Gomez v. State

No. 11-22-00134-CR                       2/22/24


Did the trial court commit error by “allowing” the defendant to represent himself after refusing the assistance of court-appointed trial counsel?


No. Appellate courts consider the totality of the circumstances in determining whether a defendant’s waiver of counsel is effective. Here, the trial court admonished and questioned the defendant multiple times on the issues and dangers of self-representation over the course of several months, including right before trial, and had the defendant sign a written waiver. Read opinion.


Recall that when a defendant clearly and unequivocally asserts his right to self-representation, the trial court must abide by Faretta v. California, 422 U.S. 806 (1975), (codified as Texas Code of Criminal Procedure Article 1.051(g)), and admonish the defendant that:  there are “dangers and disadvantages” of self-representation; there are technical rules of evidence and procedure, which the defendant will be bound by, like any other litigant; and the defendant will not be given any special consideration or leeway solely because he asserted his right to self-representation.  After receiving these admonitions, the defendant may persist in his assertion of his right to appear pro se and waive the assistance of counsel, and the defendant’s waiver will be upheld if the record shows that it was knowingly, intelligently, and voluntarily made, and that the defendant understood his choices.  The trial court is not required to follow a script or specific line of questioning during the Faretta hearing, and the detail of the trial court’s admonitions can vary depending on the defendant’s sophistication and education, as well as the complexity of the proceeding and charge.  This opinion features thorough, repeated admonitions and Faretta warnings, so keep it in mind as an example of how the trial court can make a clear and solid record if this issue arises in one of your cases.

Smith v. State

No. 14-23-00048-CR                       2/27/24


Did the trial court’s policy requiring witnesses to wear masks in the courtroom in a January 2023 trial comply with the Sixth Amendment’s right to confrontation?


No. “Any deviation from traditional face-to-face confrontation must be supported by case-specific evidence.” When non-statutory witness procedures compromise a defendant’s face-to-face confrontation right without evidence that the procedures are necessary to advance an important public policy, the defendant’s Confrontation Clause rights have been violated. Read opinion.


In reaching this conclusion, the appellate court noted the lack of evidence that the COVID-19 pandemic remained such a general, widespread public health crisis in Houston in January 2023 that it could substantiate the trial court’s mask policy as an abridgment of the right of face-to-face confrontation that was necessary to further important public interests.  Further, the appellate court cited the absence of case-specific evidence and findings that the trial court’s mask policy was warranted in this particular instance, such as because of vulnerable persons in the courtroom, a relevant COVID-19 outbreak or exposure, someone was exhibiting symptoms of illness in the courtroom, etc.  If you have a case where a mask policy might still be in place or be warranted (such as for any of the previously mentioned reasons), or where you might seek to have a witness testify remotely via Skype, Zoom, or some other means, for any reasons, keep this case in mind and do your best to develop a record that shows why those deviations from traditional face-to-face confrontation are warranted, and encourage the trial court to make thorough case-specific findings in that regard (note, drafting proposed findings in advance, which you can submit to the court and have made part of the record if the court adopts them, can help with this).

Domestic Violence Resource Prosecutor

The Texas District and County Attorneys Association is pleased to announce the creation of a new position: Domestic Violence Resource Prosecutor (DVRP). Patterned after the successful Traffic Safety Resource Prosecutor position (which provides training and support for prosecutors handling intoxicated driving cases), the DVRP will be responsible for training and technical assistance to Texas prosecutors and law enforcement personnel around the state. For more information, see the job posting here.

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 Joe Hooker.