April 5, 2019

Court of Criminal Appeals of Texas

Milton v. State

No. PD-0207-18                4/3/19


May the State play a video of a lion at a zoo attempting to eat a baby as a demonstrative aid during closing arguments for punishment?


No. A state may make a plea for law enforcement by urging the jury to impose a high prison sentence. However, a video of a lion trying to eat a baby from behind a glass wall improperly invites the jury to punish the defendant for a crime or behavior that is not supported by evidence presented during trial for a non-violent robbery. Read opinion.


The bottom line for this particular decision is, during final argument to the jury, don’t play a video of a lion trying to eat a baby—unless perhaps the case involves a defendant using a lion …  no wait, just don’t do it. There are some good things for practitioners in this opinion, such as the court’s statement—not a holding, just a statement—approving of prior decisions holding that trial courts have discretion to permit the use of demonstrative aids and charts during argument. The court also cites to many previous decisions that give a good outline of the jury arguments that courts have previously accepted and rejected.

Dunning v. State

No. PD-0445-18                4/3/19


Are post-conviction DNA test results excluding the defendant as a contributor to touch DNA found on the victim’s clothes sufficiently exculpatory to prove his innocence?


No. The probative value of touch DNA test results is low because of the significant probability that the DNA was deposited by an innocent person. Here, the exculpatory value of the test results was outweighed by the inculpatory evidence (multiple positive identifications by the victim, identifications by other witnesses, and judicial and testimonial confession). Read opinion.


This decision very much turns on deference to the trial judge’s finding that the third party’s DNA was of low probative value, largely because of the nature of touch DNA. Look at pages 13–14 for the important part of the decision in that regard. These decisions are necessarily very fact-bound, so those wanting to rely on this decision in a Chapter 64 case should read it carefully and make sure that its facts are sufficiently analogous to their own.

Texas Courts of Appeals

Figueredo v. State

No. 07-17-00334-CR        3/26/19


May a defendant be charged with multiple counts of bail jumping for failure to appear at a single hearing to answer for multiple counts?


Yes. Under Penal Code §38.10, a person commits the offense of bail jumping if he is released from custody on the condition that he subsequently appear and “intentionally or knowingly fails to appear in accordance with the terms of his release.” The gravamen of the offense is the failure to appear in court “in accordance with the terms of his release.” Here, the defendant was released on two separate bonds corresponding to two separate charges. Each bond was a separate agreement to appear and constitutes a separate offense for bail jumping. Read opinion.


The court’s double jeopardy analysis is sparse, which isn’t to say that it is wrong. However, the Court of Criminal Appeals may want to say a lot more about this issue. The court of appeals relied upon the prior Court of Criminal Appeals decision in Ex parte Marascio, but that was only a per curiam opinion, and Marascio may have been based more upon habeas corpus law than double jeopardy law. Stay tuned.

State v. Cabral-Tapia

No. 07-18-00252-CR        3/28/19


Did the State prove that an officer followed HGN test procedures as outlined in the NHTSA manual when the officer was trained using a superseded manual and no testimony or evidence was presented on his training?


No. Officers administering an HGN test must follow the standardized procedures in the NHTSA manual without more than slight deviation. Here, the officer testified that he was trained with a previous version of the manual, but no longer owned it. No evidence was presented on the testing procedures from that manual, whether the officer followed those testing procedures, or how those procedures differed from the most current manual. Read opinion.


This decision did not turn on whether the officer slightly deviated from standardized procedures; instead it turned on the State’s (or the officer’s) apparent failure to prove what those standardized procedures were. Those wishing to introduce HGN evidence would do well to read this decision and the decisions upon which it relies.

Scott v. State

No. 14-17-00493-CR        4/02/19


Was a defendant properly under arrest when an officer took him to “central intox” for field sobriety tests after witnessing two traffic violations?


Yes. An office may arrest a defendant for failure to stop at a stop sign or failure to comply with a traffic control device. The officer’s subjective belief that the move to central intox was only an investigative detention is not pertinent. Read opinion.

Concurrence (Christopher, J.):

“The plurality only considers whether the officer had probable cause to arrest [the] appellant for the traffic violation. Although I agree with the plurality’s conclusion with regards to that question (and even despite the officer’s testimony that he did not complete an arrest), this court should also consider whether the officer had probable cause to arrest [the] appellant for driving while intoxicated, even before [the] appellant was transported to central intox. As to that question, I believe that the answer is clearly “yes,” and that the officer did so arrest [the] appellant.” Read opinion.

Dissent (Bourliot, J.):

“The plurality concludes that [the] appellant’s arrest was valid because he could have been arrested for various traffic violations. I respectfully disagree with the plurality’s view that arresting an individual for traffic violations can morph into a two-hour long detention in central intox and ultimately end with standard field sobriety testing and an arrest for driving while intoxicated. The officer had two options under Texas Transportation Code sections 543.002 and 543.003 if he had arrested [the] appellant for traffic violations; he did neither. The concurrence concludes that even if the arrest could not be justified by the traffic violations, there was nonetheless probable cause to arrest [the] appellant for driving while intoxicated before he was transported to central intox. Because I would find that the officer in this case had arrested [the] appellant before transporting him to central intox and that the officer did so without probable cause, I respectfully dissent.” Read opinion.


The fractured nature of this decision is based on the concurring and dissenting justices’ reading of §§543.002 and 543.003 of the Transportation Code. They essentially would prevent an officer from investigating another offense—such as DWI—after “arresting” the defendant for a traffic code violation. If defense counsel cites these opinions to a judge, show the judge page 12 of the lead plurality opinion. Because these are published opinions, keep watch to see if the Court of Criminal Appeals wishes to review this case.


Texas cases needed for “Criminal Confessions” TV show

A producer for Shed Media in Los Angeles, Josh Paris, is seeking potential cases to feature in the third season of the true-crime documentary series “Criminal Confessions” on Oxygen. Producers are looking for adjudicated cases that were successfully investigated and that have compelling videotaped confessions. If you or someone in your office has handled a case that fits this bill, please reach out to Josh directly at [email protected] and 323/904-4680, ext. 2011. The deadline is April 5 (today).

TDCAA Domestic Violence Seminar

Registration is now open for TDCAA’s 2019 Domestic Violence Seminar. Whether you are new to prosecution or a seasoned hand, this course will cover practical skills you need to do your job today. From intake to advocacy, this is Domestic Violence training developed for Texas prosecutors and presented by Texas prosecutors. Join us in Georgetown Texas April 9­–12 for this exciting training opportunity. For more information, please click here.

TCDLA and State Bar CLE

The Texas Criminal Defense Lawyers Association (TCDLA), with co-sponsorship by the State Bar’s Criminal Justice Section, is hosting a CLE called “What You Need to Know About Sex Offender Registration” on Friday, April 26 in Austin. Registration for prosecutors and staff is free before April 15 and $50 after that. See the flyer here for more information, and register online at www.tcdla.com.

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected]