April 4, 2014

Supreme Court of Texas

Zaher El-Ali v. State

No. 13-0006                3/28/14


Is the “innocent owner” provision of the asset forfeiture statute unconstitutional because it requires a petitioner to prove his innocence rather than requiring the State to prove he is not innocent?


The court denied the petition for review.

Dissent (Willett, J.):

Because it has been 57 years since the court last reviewed this question, and because the legislature has created incentives for asset forfeiture programs through statutes allowing law enforcement to benefit from seizures, the court should make a modern review of the statute and apply 21st century scrutiny. Read the dissent.

Concurrence (Boyd, J.):

This case presents an identical question to one already decided by this court and affirmed repeatedly by the United States Supreme Court, and the words of the Constitution mean the same thing now as they did 57 years ago. Read the concurrence.


We bring this unusual kerfuffle among Supreme Court justices to your attention because Mr. El-Ali’s case has become a cause célèbre among some civil libertarian advocacy groups who tried to make this a test case for the constitutionality of Texas’ civil asset forfeiture laws. Unfortunately for them, the concurrence points out that they couldn’t have chosen a worse set of facts for a test case. However, you can expect these same arguments to be made when the legislature convenes in January 2015, so those of you who use asset forfeiture should familiarize yourself with the arguments made against the continued use of this important law enforcement tool because it will be a hot topic next session.

Texas Court of Criminal Appeals

Jourdan v. State

No. PD-0446-13                     4/2/2014


Was the defendant egregiously harmed by a jury charge that did not require a unanimous verdict with respect to whether the defendant committed aggravated sexual assault by penetration under §22.021(a)(1)(a)(i) or by contact under §22.021(a)(1)(a)(iii) of the Penal Code?


No. The evidence showed that contact must have occurred first in any scenario in which penetration also occurred, meaning that the jury most likely unanimously agreed that the defendant was guilty under §22.021(a)(1)(a)(iii). The court explored several other defense theories in dictum regarding errors in the indictment and in the jury charge that could have been fatal to the State’s case, but it noted those theories were not properly preserved and therefore not applied in this analysis. Read the opinion.


When prosecuting aggravated sexual assault of a child and indecency with a child, we must always be particularly careful in pleading more than one type of action and/or pleading more than one paragraph (assuming that the State is intending upon gaining only one conviction). The big problem with this case is that the State pleaded “contact” and “penetration” to prove one aggravated sexual assault of a child. “Contact” and “penetration” are technically different types of conduct and would properly be two separate offenses. If there is evidence of only one penetration but it’s not entirely clear what the defendant used to effect that penetration (as was apparently the situation in this case), then we can safely plead the multiple objects that may have been used to effect that penetration (in this case, male sexual organ and finger). If there is evidence of several penetrations, even over a short period of time, each of those separate penetrations are technically a separate offense, for which we can gain a separate conviction. But make sure that the pleadings and the jury charge make it crystal-clear upon what specific acts the State is relying to support those multiple convictions. Attempting to gain only one conviction from separate penetrations (or contacts) will invariably run into unanimity problems. Those who insist on obtaining only one conviction in such a situation might consider instead charging the defendant with continuous sexual abuse of a child, in which case the unanimity problems cease to be an issue.

Ex Parte Howard

No. AP-76809                         4/2/14


Was the defendant entitled to habeas relief on an ineffective assistance theory because his counsel did not obtain expert testimony and present evidence of intoxication-induced insanity at his trial for aggravated assault?


Yes. The defendant was prejudiced by this lack of evidence at punishment, where he received a 20-year sentence, and is entitled to a new punishment hearing. Read the opinion.

Dissent: (Keasler, J.)

The issue of ineffectiveness at punishment was not raised in the writ, and the court has set a dangerous precedent by improperly formulating a new, unpleaded claim on behalf of the defendant. Additionally, the court has broken from its practice by remanding for a new trial instead of remanding for input from defense counsel as to why the complained-of actions were a reasonable trial strategy. When the court reaches out to address unpleaded claims in a manner inconsistent with similarly pleaded applications, it undermines the habeas process and the judicial system generally. Read the dissent.


This decision is infuriating, but you will not be able to tell that by reading that majority opinion, which is nothing more than a few sentences accepting the trial court’s recommendation that habeas corpus relief by granted as to punishment. To determine the actual facts of this case, read Judge Keasler’s dissenting opinion or the court’s original opinion issued on September 11, 2013. They will show that the defendant sliced his son’s arm open with a knife-sharpening rod and that the defendant repeatedly stabbed his son in the back with a knife when the son came to the aid of his girlfriend who had attempted to intervene on the son’s behalf.  The defendant responded verbally to everyone’s disbelief as to what he was doing to a member of his own family.  He responded with recognition of what he was doing and with no remorse.  Now we are supposed to believe that the defendant blacked out and that expert testimony was necessary to explore that possibility with the jury. Read the September 11 opinion and/or Judge Keasler’s opinion to see that the defendant had committed numerous extraneous offenses, some quite violent. This defendant does not need a new punishment hearing. He deserves every bit of the maximum punishment that he received. Would that he could have received more.

Thornton v. State

No. PD-0669-13                     4/2/14


When an appeals court finds insufficient evidence to support a guilty verdict for the charged offense but sufficient evidence to support a lesser-included charge, can the court reform the verdict if the State never requested a lesser-included charge or objected to the omission of a lesser-included?


Yes. The State does not have to “preserve error” for the appeals court to reform the verdict. The concept behind allowing an appeals court to reform the verdict is that it would not be just to convict someone on insufficient evidence, but it would also not be just to require an acquittal when the evidence proved a lesser-included offense was committed beyond a reasonable doubt. Read the opinion.

Concurrence (Keller, P.J.):

In the underlying case, where a defendant inconspicuously dropped a crack pipe behind him during an investigatory detention, the evidence was sufficient to support a lesser-included charge of attempted tampering with evidence when the original charge was tampering with evidence. Read the concurrence. Read the concurrence.

Dissent (Cochran, J.):

This was a straight Class C possession of paraphernalia case, and the fact that the defendant dropped the crack pipe could not convert the Class C into the felony for which he was convicted. Read the dissent.

Dissent (Alcala, J.):

Because the jury, in finding the defendant guilty of the offense of tampering with physical evidence, did not necessarily find that he acted with the specific intent to conceal evidence from officers, the judgment should not have been reformed to a conviction for criminal attempt. Read the dissent.


This one will make your head hurt. Read the majority opinion if you wish, but it is quite complex and technical. The sole issue here is whether the judgment could be reformed to reflect a conviction of a lesser-included offense. It seems that the issue should have been whether the defendant was guilty of the charged offense of tampering with evidence in the first place. The court of appeals held that the evidence was insufficient to support the defendant’s conviction for tampering because the defendant did a bad job in concealing the evidence (the crack pipe). Does that mean that a magic trick ceases to be a magic trick because one person in the audience can figure out how the magician did it? If any rational trier of fact could have found that the defendant concealed the crack pipe, then the defendant should be guilty of the charged offense.

Holberg v. State

No. AP-77,023                        4/2/14


Did a death-row inmate show she was entitled to have her victim’s wallet tested for her DNA on a theory that if her DNA was not present, it would exonerate her from the robbery element of the crime that enhanced the murder into a capital murder?


No. The defendant was required to show she would not have been convicted if exculpatory results had been obtained through DNA testing, and even assuming her DNA was not found on the wallet, the evidence that she committed robbery through other actions was sufficient to uphold the capital murder conviction. Read the opinion.


This is yet another good discussion of what a defendant is required to present to be entitled to post-conviction DNA testing.  Review it carefully if a defendant requests such testing in a case where the evidence in support of his guilt is otherwise strong.

Freeman v. State

No. PD-1579-13                     4/2/14


In light of the court’s decision last fall in Ex Parte Lo and its recent denial of the State’s motion for rehearing, was the defendant entitled to another review by the Court of Appeals of his facial challenge to the constitutionality of §33.021(b) of the Penal Code on First Amendment grounds?


Yes. The Court of Appeals did not have the benefit of the Lo opinions when this case was decided, so the court vacated the court of appeals’ previous ruling and remanded the case to them for further action. Read the opinion.


During the next legislative session, let’s hope §33.021(b) will be amended so that it passes constitutional muster. This statute is a very valuable tool against sexual predators before they have graduated to much more serious crimes against an unsuspecting child. 

Texas Courts of Appeals

Auston v. State

No. 03-12-00482-CR              3/27/14


Could a jury have reasonably inferred that a BB gun was a deadly weapon because, if fired, it could have hit the victim in the eye?


No. Although it might be true that all BB guns are capable of causing serious bodily injury whenever they are pointed at someone, this is not the kind of general knowledge that all jurors are expected to know through common experience. Therefore, the State was required to introduce some evidence that the manner in which the defendant used or intended to use the BB gun in this case made the weapon capable of causing serious bodily injury. Read the opinion.


This is actually a pretty good decision exploring whether a BB gun can be a deadly weapon and what the State must prove to justify such a finding.  But surely everyone knows by now that you can shoot your own eye out with a BB gun, just as surely that everyone knows that George Bailey is the richest man in town (at least at Christmas time).

Maldanado v. State

04-12-00693-CR                                 3/26/14


Can a defendant be convicted of both aggravated sexual assault of a child by penetration and also indecency by contact for the sexual contact that necessarily accompanies a penetration offense?


No. A conviction for a completed sexual assault bars conviction for conduct that is demonstrably part of the commission of that offense. Double jeopardy also bars prosecution for sexual contact that was incidental to or subsumed within an alleged act of penetration for which the defendant had already been placed in jeopardy. Read the opinion.


Just as with the Jourdan v. State case above, we must make sure that the sexual actions that the State is prosecuting are in fact completely separate actions to obtain more than one conviction. If the contact can be viewed as merely the prelude to the ultimate penetration, the courts will see only one sexual action and will prohibit convictions for both.


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