April 3, 2020

Court of Criminal Appeals

Tracy v. State

No. AP-77,076            1/1/20


1) Is a defendant entitled to hybrid representation during pretrial motions under Art. 1, §10 of the Texas Constitution?

2) Is a defendant entitled to a change in venue because of excessive pretrial publicity?


1) No. The constitutional right of a defendant to be heard by himself was instituted to assure that defendants have the right to testify. And the right to be heard by counsel was intended to do away with the rules that denied representation, in whole or in part, by counsel in criminal prosecutions. Art. 1, §10 was not intended to encompass the right to self-representation as delineated in Faretta v. California, 422 U.S. 806 (1975).

2) No. Where a defendant seeks a change of venue based on media attention, he must show that the publicity was “pervasive, prejudicial, and inflammatory.” Widespread publicity by itself is not considered inherently prejudicial. Here, the Court concluded that the media coverage was not pervasive, prejudicial, or extensive, and it did not permeate the community to such an extent that a fair and impartial trial would be impossible. The Court concluded that the trial judge acted within the zone of reasonable disagreement in denying the motion to change venue based on media coverage. Read Opinion.


The defendant made the rarely heard argument that the Texas Constitution requires the right of hybrid representation because it guarantees the right to heard by himself, by counsel, or both. The court briefly disposes of the argument, but this should be a good resource if a defendant demands hybrid representation based upon the Texas Constitution. With regard to the second issue, it is very hard for a defendant to prevail on appeal based upon a claim that the trial judge should have granted his motion to change venue. This decision is yet another in a long line of decisions that have rejected defendants’ venue change requests.

Metcalf v. State

No. PD-1246-18         1/1/20


Does a parent’s willful ignorance of the sexual assault of her child satisfy the element of “acting with intent to promote or assist” for party liability under Texas Penal Code §7.02(a)(3)?

Holding (Hervey, J.):

No. The State had to prove that the defendant (the victim’s parent), at the time of the offense, intended to promote or assist the commission of the anal penetration alleged in the indictment. But because the evidence does not show that it was the defendant’s conscious objective or desire for her husband to sexually assault the victim, the evidence was insufficient to show that she intended to promote or assist the commission of that offense. Read Opinion.

Concurring (Keel, J.):

“I concur in the majority’s judgment; the evidence was legally insufficient to convict [the defendant] as a party to her husband’s sexual assault of her daughter. Viewed in the light most favorable to the conviction, the evidence would not have authorized a rational jury to find that [the defendant] acted with the intent to promote or assist the commission of an offense against her daughter. See Tex. Penal Code §7.02(a). But I disagree with the majority’s suggestion that the State had to prove that [the defendant] intended to promote or assist the specific offense committed by her husband. The State did not bear that burden because of the law of transferred intent.” Read Opinion.

Dissenting (Slaughter, J. joined by Yeary, J.):

“The Court’s opinion rejecting the jury’s verdict deviates from sufficiency principles by failing to defer to the jury’s resolution of conflicting facts, and by disallowing the jury from relying on reasonable inferences to draw conclusions about [the defendant]’s intent surrounding her husband’s sexual abuse of [the victim]. Applying the appropriate level of deference to the jury’s verdict, there is sufficient evidence to support [the defendant]’s conviction as a party to this offense under Tex. Penal Code §7.02(a)(3). Therefore, I respectfully dissent.” Read Opinion.


This is a rare discussion of the law of parties under §7.02(a)(3). In that respect, this decision should be very helpful. The concept of willful ignorance is rarely discussed in criminal law in general, and it is not a part of a Texas criminal law—at least not yet. In that respect, proving that a defendant acted with the intent to promote or assist the commission of an offense can be difficult if the defendant is not the typical co-defendant or accomplice. A defendant can still be held criminally liable in such a case, but that is typically done by prosecuting the defendant’s omission or failure to act. The bottom line is that a defendant’s failure to act—standing alone—will not be sufficient to show that she acted with the intent to promote or assist the commission of the offense.

Texas Courts of Appeals

Hicks v. State

No. 01-18-00603-CR              3/31/20


Is a prosecutor’s failure to disclose that one of the veniremembers—who ultimately served on the jury—was his brother-in-law and the trial judge’s failure to disclose that another one of the veniremembers—who also served on the jury—was her brother a violation of a defendant’s Fifth and Sixth Amendment right, Brady v. Maryland, and the Michael Morton Act?


No. The Court concluded that the defendant forfeited his challenge for cause because defense counsel did not ask questions relevant to determining whether any prospective juror knew or was related to the prosecutor or the trial judge. There was no indication in the record that defense counsel was somehow prevented from asking these questions to the venire. In addition, the Court concluded that in this case, Brady was not applicable to the relationships between a juror and one of the prosecutors and a juror and the trial judge. Finally, the Court concluded that Art. 39.14(a) does not obligate the State to disclose that a prosecutor has a familial relationship with a prospective juror. Read Opinion.

Concurring (Goodman, J.):

“Defense counsel did not ask potential jurors whether any of them were related to the judge or prosecutor. The judge’s brother and the prosecutor’s brother-in-law were seated on the jury. On appeal, [the defendant] contends that the judge and prosecutor were obligated to disclose the presence of relatives in the jury pool and that the selection and service of these relatives as jurors deprived him of his constitutional right to an impartial jury. As it must, the majority rejects [the defendant]’s claim based on Armstrong v. State, 897 S.W.2d 361 (Tex. Crim. App. 1995) (per curiam). I agree that Armstrong disposes of [the defendant]’s complaint and thus concur in the majority’s opinion, but I write separately to urge Armstrong’s abrogation.” Read Opinion.


The majority opinion is a very thorough discussion of the law regarding challenges for cause and the defendant’s general duty to question prospective jurors to determine if they are subject to a challenge for cause—which this juror was. The majority’s discussion of Brady and the Michael Morton Act are also helpful. But the majority does not condone the prosecutor’s failure to disclose the relationship with the juror and actually states that the prosecutor should have revealed that information. It is possible that we might see a claim of ineffective assistance of counsel in an application for a post-conviction writ of habeas corpus. In the meantime, watch this case to see if the Court of Criminal Appeals will want to review Armstrong, upon which the majority so heavily relies, and which the concurring opinion wants to see overruled.

State v. Staton            

No. 05-19-00661-CR              3/30/20


Does a search warrant requiring the seizure of a defendant’s blood permit the testing and analysis of the defendant’s blood?


Yes. The search warrant gave authorization to “search for, seize, and maintain as evidence the property described in said Affidavit, to-wit: human blood from the body of” the defendant. Although the warrant did not expressly authorize testing and analysis of the blood sample, State v. Martinez, 570 S.W.3d 278 (Tex. Crim. App. 2019) does not require that it do so. Rather, Martinez held that an individual has an expectation of privacy in blood previously drawn for purposes other than police testing. In this case, the defendant’s blood was drawn and analyzed for the purpose of testing for intoxicating substances, and the State sought to admit the results of that specific testing. Read Opinion.


This is the predictable outgrowth of last year’s decision of the Court of Criminal Appeals in State v. Martinez, in which the court held that, when a DWI defendant’s blood is drawn and analyzed, two searches occur—when the blood is drawn and when the blood is analyzed. So far, all courts that have addressed this issue have held that, if the State obtains a search warrant for the drawing of the blood, it need not obtain a second search warrant for the analysis of the blood. The Court of Criminal Appeals has already agreed to review this issue in other cases, so we will have its decision on this issue eventually. In the meantime, if you have this issue come up, read this decision and the decisions upon which it relies. You should also go to the appellate court’s website and get a copy of the State’s brief in this case. It is excellent.

Osorio-Lopez v. State

No. 06-18-00198-CR              3/27/20


May a food tray be considered a deadly weapon for the offense of aggravated assault with a deadly weapon?


Yes. A rational jury could have found beyond a reasonable doubt that the food tray, hurled forcefully at the victim’s face, was capable of causing “permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ,” as, for example, if it had struck the victim on the eye or orbital bone. Tex. Penal Code §1.07(a)(46). The Court held that the evidence was legally sufficient to support the jury’s verdict as to the deadly weapon finding. Read Opinion.


If you needed a decision that holds that a plastic food tray can be a deadly weapon, here it is. The evidence needs to support the deadly weapon allegation, but if it does, almost anything can be a deadly weapon in a particular case.

Ex parte Hamilton

No.14-18-00534-CR               3/26/20


Does Tex. Penal Code §21.15(b)(1), the state jail felony offense of invasive visual recording, violate the First Amendment?


No. The Court held that §21.15(b)(1) satisfies strict scrutiny, is not facially overbroad, and does not violate the First Amendment. Subsection (b)(1) clearly seeks to protect a person’s substantial privacy interest in his or her own personal intimate areas not subject to public view and punish nonconsensual attempts to capture or transmit photographs or recordings of those private areas. In addition to including a culpable mental state (intentional) to narrow the provision to address substantial privacy concerns, the legislature precisely designated and further limited the application of subsection (b)(1) to specific areas of a person’s body both based on “intimate area” location and to situations where a person has a reasonable expectation that such “intimate area is not subject to public view.” Read Opinion.


This is an unusual First Amendment decision. The court holds that the statute is a content-based regulation subject to a strict-scrutiny analysis, as opposed to intermediate scrutiny. Nevertheless, the decision still upholds the constitutionality of the statute. As such, this is a very valuable decision. Since a previous version of the statute was declared unconstitutional by the Court of Criminal Appeals in Ex parte Thompson, expect that the high court will want to review this decision as well. But the result should hold up. Stay tuned.

Texas Attorney General

KP-0296          3/27/20


Do Local Government Code §229.001 and §236.002 prohibit municipal or county officials from restricting the sale of firearms through an emergency declaration?


Yes. Subsections 229.001(a) and 236.002(a) of the Local Government Code prohibit a municipality or county from adopting regulations related to the transfer, possession, or ownership of firearms, or commerce in firearms. These provisions apply to municipal and county regulation “notwithstanding any other law.” Thus, while municipal and county officials possess general emergency authority to control the movement of persons and the occupancy of premises in a local disaster area under Government Code §418.108, such orders may not regulate or restrict the sale of firearms. Read Opinion.


As the state of emergency continues, expect to see more legal opinions from courts and others regarding the limits of authority during this time. As such, you should get very familiar with Chapter 418 of the Texas Government Code, as well as Chapter 81 of the Texas Health and Safety Code. Be safe.