April 17, 2014

Texas Court of Criminal Appeals

State v. Thomas

No. PD-0121-13                     4/16/14


May a new trial be granted in the interest of justice upon a claim that defense counsel failed to call an exculpatory witness—who was known to him and available at trial—if the claim is not based on ineffective assistance of counsel?


No. The failure of trial counsel to call an exculpatory witness who was available at trial and known to the defense is not, by itself, a valid legal claim. A new trial could be granted on the basis of ineffective assistance of counsel, but that claim was lost when counsel asserted attorney-client privilege and refused to testify as to the trial strategy in not calling the witness. Read the opinion.


With this decision, the days of a trial judge granting a motion for new trial for an uncertain reason should be over. A trial judge cannot just grant a motion for new trial because he “feels bad” about the trial. There must be an actual “legal basis” for the trial judge’s ruling. This case was interesting because the defendant had claimed that an allegedly exculpatory eyewitness had not been called as a witness at trial. But—at the motion for new trial hearing—when the State attempted to cross-examine the defendant’s trial attorney about his reasons for not calling the witness, the defense objected and disclaimed any reliance upon a claim of ineffective assistance of counsel. A unanimous Court of Criminal Appeals agreed with the State that the success of such a defense strategy at the motion for new trial hearing would have been a “miscarriage of justice.”

Gipson v. State

PD-0377-13                            4/16/14


In a revocation hearing for failure to pay fines, does CCP art. 42.12 §21(c) require the State to prove the defendant was able to pay but chose not to?


No. The statute mentions court costs, community supervision fees, and compensation paid to counsel, but not fines. Read the opinion.

Concurrence (Johnson, J.):

The legislature’s placement of the word “only” at its current location within the sentence indicates the legislature’s intent for this statute to apply in the very limited circumstances of when failure to pay is the State’s only allegation at the revocation hearing. Read the concurrence.

Concurrence (Alcala, J.):

Included within his arguments in this appeal, the appellant accurately observes that the federal Constitution requires that a trial court inquire into a defendant’s reasons for his failure to pay a fine and consider alternatives to his incarceration. But for the appellant’s failure to preserve this complaint for review, the outcome of the appeal would probably be different. Read the concurrence.


Do not get too carried away with this decision. It is limited by the argument that the defendant preserved at trial. If the defendant had raised a constitutional argument, as noted by Judge Alcala, the result likely could have been different.

Campbell v. State

No. PD-0854-13                     4/16/14


When a restaurant owner testified the damage to his restaurant from a fire set by the defendant was estimated by the insurance company to be $400,000 and his own estimate of the cost to rebuild would be $1 million, was that testimony sufficient to establish pecuniary loss of more than $200,000?


Yes. Although a layperson’s “off-the-wall” opinion of damage is not sufficient to establish pecuniary loss, the owner’s testimony was based on an expert opinion from his insurance company. Additionally, an owner’s estimate of purchase price or cost to replace is sufficient to establish fair market value. Read the opinion.  


The court’s jurisprudence concerning value in criminal mischief cases has always been a little difficult to nail down. This decision appears to give some guidance and harmonizes the court’s leading cases on this issue. If you have a criminal mischief case in which value is going to be an issue, definitely should read this decision because it gives a good overview of the previous decisions in this area and it shows what kind of testimony courts will be looking for to justify a jury’s guilty verdict.

Texas Courts of Appeals

Almaguer v. State

No. 13-12-00605-CR              4/10/14


1) When the State conceded it violated Double Jeopardy via the defendant’s convictions of manslaughter, murder, and injury to a child for the same action, how should the court have determined which of the convictions should be retained and which should be set aside?

2) When the defendant’s son responded to a CAC worker’s news that his infant brother was dead by immediately saying, “My mom did it,” and then sketching several unsolicited but incriminating drawings with nearby markers and paper, were the drawings and statements admissible as excited utterances?


1) When multiple convictions from the same act violate Double Jeopardy, only the most serious offense should remain and the others should be set aside. If there is no obvious way to determine what is the most serious offense, the court should allow the local prosecutor to determine which offense should remain.

2) Yes. Although the crime had happened well before the boy was made aware, very little time passed between when he was alerted to his brother’s death and when he made the statements and the pictures.

Read the opinion.


The Double Jeopardy issue (as to the appropriate remedy) is quite novel, and the Court of Criminal Appeals may wish to review it. The court of appeals here relied upon a dissenting opinion authored by Judge Keller in a presiding case, but it is well-reasoned and may hold up on discretionary review. The hearsay issue is rather uncommon, involving both hearsay (excited utterance) and Confrontation aspects. The boy’s “statements” (most of which were actually drawings) were made at a Children’s Assessment Center during a “grieve session” when the boy was told that his brother was dead. Usually with an excited utterance, the “excitement” arises from the actual offense that was witnessed, but here, the “excitement” was being told that the boy’s brother was dead.

Perone v. State

No. 14-12-00969-CR              4/15/14


Are text messages and FaceTime video calls “telephone communications” for the purposes of the harassment statute?


Yes. They are communications, and if they are made via cell phones, they are telephone communications. Read the opinion.


This should be a helpful decision.  Just about everyone has a cell phone today, but it also seems that today’s cell phones are rarely used for traditional phone calls.  Communication by text message and programs like FaceTime are used more and more often as exclusive means of telephone communication. This decision will help to keep such things within the scope of §42.07(a)(4) of the Penal Code.  If you have a telephone harassment case, review this decision.

Riley v. State

No. 14-12-00729-CR              4/15/14


When the defendant, from Houston, called DFPS in Austin and made a false report regarding his ex-wife’s care for their child, who lived in Galveston, was Galveston County the proper venue for trial even though all of the elements of the crime occurred in Harris and Travis Counties?


Yes. As a matter of first impression, the court held that a report under Chapter 261 of the Family Code is “made” in the county of the CPS office that receives notification from DFPS. The nature of the crime is the waste of resources and harassment of those accused that is caused by false reports. The county with the greatest interest in prosecuting a false report made under Chapter 261 will generally be the county in which resources were spent on the unnecessary investigation. Read the opinion.


This is a well-reasoned decision, but it may be reviewed by the Court of Criminal Appeals because it is clear that no actual element of the offense occurred in the county where the defendant was prosecuted. The court of appeals also applied a harm analysis if the venue was erroneous, so we shall see if the case captures the high court’s notice. Even so, it might be a good idea to amend the venue statutes to allow a false report prosecution to be tried in the county where the greatest resources were expended in responding to and investigating the false report.

Office of the Attorney General

Request for Opinion from the County Attorney for Nolan County

RQ-1195-GA                          4/10/14


May a person sit on both the local juvenile board and the school board without creating a conflict of interest? Read the request.


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