April 13, 2018

Texas Court of Criminal Appeals

Gonzalez v. State

No. PD-0181-17                       4/11/18


Can evidence of extraneous drug use be entered into evidence as relevant to a claim of self-defense?


Maybe. Evidence of extraneous offenses may be admissible when it relates to a “fact of consequence.” The relevance of evidence of drug use will depend on the ability to infer intoxicating effects from the drug. The strength of the inference depends on factors including when the drug was taken, the amount taken, the length of time the particular drug lasts, and whether expert testimony is required to explain the effects of the drug. Even if the drug use is relevant, it may still be inadmissible if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Here, evidence that the defendant took Ecstasy six hours prior to the incident may be relevant to his claim of self-defense, but no evidence was offered on the intoxicating effects of Ecstasy or the amount of time those effects last. Because the inference that the defendant was actually under the influence of Ecstasy at the time of the incident was “weak at best,” the prejudicial effect of the evidence substantially outweighed the probative value. Read opinion.


On the merits, this decision is primarily a decision under Rule 403 of the Rules of Evidence. It is consistent with the court’s prior decisions holding that evidence of a defendant’s drug use to show intoxication is not relevant absent expert testimony showing the particular effects of the particular drug. See Layton v. State, 280 S.W.3d 235 (Tex. Crim. App. 2009). Prosecutors should be cautious about introducing evidence of a defendant’s drug use—standing alone—to show intoxication. The State was saved in this particular case because the error in admitting the evidence was found to be harmless.

Texas Courts of Appeals

Robino v. State

No. 06-17-00172-CR               4/10/18


May officers continue a warrantless search of a vehicle under the automobile exception after a passenger is identified as the perpetrator in the reported crime?


Yes. Under the automobile exception to the warrant requirement, officers may search a vehicle if they have probable cause to believe the vehicle contains evidence of a crime. This extends to any containers or objects in the vehicle that could contain evidence regardless of ownership. Here, officers responded to a report of an attempt to pass a counterfeit bill and stopped a vehicle matching the description. When officers found a counterfeit bill on the passenger seat, there was probable cause to search the entire vehicle for further evidence of forgery. Officers were not required to stop the search of the car when one of the passengers was identified as the person who attempted to pass the counterfeit bill. Read opinion.


It is important to note this is not a case involving a search incident to arrest, controlled by Arizona v. Gant, but rather probable cause to search an automobile, controlled by United States v. Ross and other cases. This is an excellent discussion of the caselaw from the United States Supreme Court on searches under the “automobile exception.”

Simpson v. State

No. 01-17-00158-CR               4/10/18


Is a trial court required to sua sponte instruct a jury on sudden passion?


No. A trial court is required to instruct the jury on “the law applicable to the case.” If the evidence raises the issues of sudden passion, the defendant is entitled to a jury instruction at his request. However, an unrequested defensive issue is not part of “the law applicable to the case,” and a defendant forfeits any defensive issue that is not explicitly requested. Read opinion.


This is a good decision reaffirming that sudden passion is a defensive issue, even though it occurs only at the punishment stage. Therefore, a defendant is required to request an instruction on sudden passion before he can complain about it on appeal. This is important because the general rule under Almanza v. State is that a defendant can complain about any jury charge error on appeal whether he objected at trial or not.


The Animal Law Section of the State Bar of Texas is holding its annual Animal Law Institute conference on Friday, April 27 in Austin. The conference is on animal cruelty and topics include the link between domestic violence and animal abuse, Texas animal cruelty laws 101, preparing and prosecuting animal cruelty cases, animal hoarding, dog fighting, ag gag laws, passing animal cruelty laws in Texas, and ethics. More information available here.

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