Texas Court of Criminal Appeals
Flores v. State
No. PD-0064-20 3/31/21
Issue:
Was evidence legally sufficient to support the finding that an electric drill covered in plastic bags was a deadly weapon under the Penal Code?
Holding:
No. “Contrary to the court of appeals’ suggestion … the question is not whether the object ‘could’ possibly be a deadly weapon under a hypothetical scenario; instead, it is whether the object ‘could be a deadly weapon under the facts of the case.’” In Flores, the evidence did not support the conclusion that the defendant “intended to use the drill to stab, drill, or bludgeon anyone”; instead he only “waved the drill around and shook it.” Read opinion.
Dissent (Hervey, J.):
“In dividing and conquering the evidence without considering its combined and cumulative force and any reasonable inferences that can be drawn to support verdict, then focusing on evidence not in the record and how it would have liked the State to present the case instead of how it did, I believe that the majority misapplies the Jackson standard for legal sufficiency.” Read opinion.
Dissent (Keel, J.):
The defendant “intended to intimidate, manipulate, and steal from his victim, and he accomplished his objectives by brandishing a menacing-looking object that turned out to be a drill. … Under these circumstances, any rational jury could find beyond a reasonable doubt that [the defendant] did indeed intend to use the drill in a way that could cause serious bodily injury.” Read opinion.
Commentary:
The majority confirms that the State was not required to present evidence establishing that the defendant actually intended to use the drill to cause serious bodily injury or death. However, the majority held that the State was required to present some evidence that the defendant intended a violent use of the drill that would be capable of causing serious bodily injury or death. The majority also held that the State was required to prove that the drill was actually capable of causing death or serious bodily injury. Consequently, it was not sufficient that the defendant wanted to make the victim believe that the drill was a gun and that he might shoot her with it. If you have a case in which the defendant’s weapon of a choice was not a “traditional” weapon, read this decision and make sure that the facts come within its parameters.
Carter v. State
No. PD-0575-19 3/31/21
Issue:
Must the State produce explicit testimony regarding the exact positioning of a drug’s chemical components for a jury to reasonably infer the structural requirements of Health & Safety Code §481.1031(b)(5)?
Holding:
No. The unanimous Court noted that the expert testified to: 1) the prohibited synthetic compounds under Penalty Group 2-A; 2) the compound possessed by the defendant contained fluoro-ADB; and 3) flouro-ADB is prohibited based on its components and how they are structured. As a result, “… a rational trier of fact could reasonably infer that his analysis established that fluoro-ADB satisfied the criteria of Section 481.1031(b)(5): that indazole (the core component) was substituted at the 1- position to any extent, and substituted at the 3-position with carboxamide (the link CARTER — 10 component) attached to methoxy dimethyl oxobutane (the group A component)―even though he did not explicitly say so.” Read opinion.
Commentary:
Odds are that few of you will have this type of controlled-substance case, where more specific expert testimony is necessary. But if you do, this decision will be invaluable—right down to the handy chart reproduced on page six of the court’s opinion. You might even want to get your hands on the transcript of the expert’s testimony itself.
Dulin v. State
Nos. PD-0856-19 & PD-0857-19 3/31/21
Issue:
Can a judge assess a “time payment fee” while a defendant’s case is on appeal?
Holding:
No. A defendant’s appeal suspends the duty to pay fines, court costs, thereby also suspending the running of the clock for purposes of the time payment fee. Assessing a time payment fee while an appeal is pending is premature. The Court did not address the defendant’s contention that the court costs assessed in his 12 offenses (as a “time payment fee” found in Local Gov’t Code §133.103) were a constitutional violation of the separation of powers provision. Read opinion.
Dissent (Yeary, J.):
“I would … hold that, when the total court costs authorized by statute and appropriately imposed in a given case is not so extravagant as to plainly exceed the actual cost to the State of Texas of litigating that case to a final conviction and executing the judgment, there is no usurpation of a power properly attached to a different department of government, regardless of how the recovered funds are statutorily apportioned.” Read opinion.
Commentary:
This decision does not preclude a trial judge or clerk from issuing a bill of costs if the defendant has filed a notice of appeal. The issue only came up in this case because of the larger issue regarding the time-payment fee, along with suspension of the time because the appeal was pending.
Holoman v. State
No. PD-1339-18 3/31/21
Issue:
If the State alleges and fails to prove one of two aggravating facts allowed under PC §22.01(b)(2), may it try to prove the other aggravating fact at the punishment phase of trial as an enhancement raising the level of the offense to a third-degree felony?
Holding:
No. Penal Code §22.01(b)(2)(A) “establishes an element of an aggravated crime and not, alternatively, a punishment enhancement.” Read opinion.
Commentary:
This is purely a decision of statutory construction and an application of the court’s significant decision in Oliva v. State. The wording of the statute made it clear to the court that the aggravating fact in this case—a prior conviction—was an element of the offense that would need to be proved at the guilt/innocence stage and not merely an enhancement that could be proved at the punishment stage.
Texas Courts of Appeals
Rodgers v. State
No. 14-19-00216-CR 3/30/21
Issue:
Was the evidence legally sufficient to support a conviction under Penal Code §38.02(a) (Failure to Identify) when the defendant did not give the officer his true name then failed to clarify when asked by the investigating officer, and the officer told the defendant that he was being detained, not arrested?
Holding:
Yes. “[A] reasonable jury could have concluded that [the defendant] exhibited conduct manifesting an intent to refuse to identify himself shortly after [the] officer … asked [the defendant] to spell his name again because the name he had first provided did not yield an existing person registered in the system.” The Court also concluded that under the facts of this theft investigation, a rational jury could have concluded that the officer had probable cause to arrest the defendant for theft and that the officer “objectively manifested an intent to arrest [the defendant] in such a way that [the defendant] understood that he was arrested.” Read opinion.
Dissent (Spain, C.):
The dissent concluded that if the State had instead charged the defendant with giving a false or fictitious name, it could have avoided these issues. “How much time during a continuous transaction does a defendant have to respond to a police officer’s request to identify? Ten minutes? Five minutes? Fifteen seconds? The court draws no lines.” Read opinion.
Commentary:
The majority refused to consider the defendant’s silence or feigned sleeping as evidence of an intentional refusal to identify. But the majority did rely upon the defendant providing an incorrect name as evidence of an intentional refusal to identify, at least under these facts. This is a very thorough opinion, so if you have a failure-to-identify case, this decision could be helpful. It will be interesting to see if the Court of Criminal Appeals wishes to review this decision.
State v. Temple
Nos. 14-20-00388-CR & 14-20-00389-CR 3/30/21
Issue:
Did the trial court lack jurisdiction to suspend a defendant’s sentences and place him on community supervision (“shock probation”) 202 days after the defendant began serving his sentences despite the COVID-19 State of Disaster/First Emergency Order?
Holding:
Yes. “The 180-day limit on a trial court’s jurisdiction to grant shock probation is just that—a jurisdictional limit—and it is strictly enforced.” Under the First Emergency Order regarding the COVID-19 State of Disaster, “trial courts were permitted, subject to constitutional limitations, to ‘[m]odify or suspend any and all deadlines and procedures, whether prescribed by statute, rule, or order.’” However, the Court held that jurisdiction was not a “procedural” concept and the “First Emergency Order does not by its terms extend a trial judge’s authority to order shock probation beyond 180 days after a defendant begins serving a felony sentence.” Read opinion.
Commentary:
Slowly but surely, we are getting decisions from the courts regarding what orders trial judges can issue during the pandemic. This decision directly follows the March 3rd decision of the Court of Criminal Appeals in In re State ex rel. Ogg.