April 8, 2016

Court of Criminal Appeals

Ex parte Saenz

No. WR-80, 945-01           4/6/16


Can a court consider an “amended” application for habeas under Code of Criminal Procedure art. 11.07 if the original application is still pending?


Yes. An additional pleading under art. 11.07 does not require a separate habeas proceeding or implicate 11.07, §4, unless the first application has been finally disposed of. The court may consider all amended or supplementary claims together before the final disposition of the application. Based on the defendant’s amended petition, the Court also found his trial counsel defective because, based on the developed record, the trial counsel’s failure to impeach a key identifying witness was not strategic, but rather an oversight or mistake. Read.


This decision appears to be in line with the court’s prior cases on the consideration of additional claims before the application has been disposed of. And the decision is unanimous, which certainly suggests that the court did not believe that it was straying too far from its other cases. This case also represents only a minor limitation upon the doctrine of laches, which the court has been so open to pursuing in recent cases. If you handle habeas corpus matters or claims of ineffective assistance of counsel on a regular basis, you will need to read this decision.

Jones v. State

No. PD-0587-15                 4/6/16


Was the defendant’s certification of appeal, stating that he had waived his right to appeal, defective?


No. Although the judge never specifically referenced this waiver of the right to appeal as a part of the plea agreement, the record clearly shows there was bargained-for consideration made to the defendant in exchange for this concession. The State agreed to waive one enhancement paragraph, lowering the mandatory sentence from 25 years to five years, the defendant signed the waiver of appeal in the plea documents, and the court accepted the agreement; thus, the waiver was binding on the defendant. Read.


This will be a good decision to help you decide if a defendant’s waiver of his right to appeal will be binding. You will need to look for some consideration in the plea agreement, and that consideration does not have to be a punishment recommendation or agreement. 

Elizondo v. State

No. PD-1039-14                 4/6/16


Was it error for the trial court to include a “provoking the difficulty” instruction in the jury charge?


Yes. Before a jury charge on provocation is allowed, a court must determine if there is enough evidence that a jury could find three factors: 1) that the defendant did some act or used some words that provoked the attack on him; 2) that such act or words were reasonably calculated to provoke the attack; and 3) that the act was done or the words were used for the purpose and with the intent that the defendant would have a pretext for inflicting harm upon the other. In this case there was no evidence that the defendant intended to provoke the victim or used words or actions as a pretext to harm the victim. The three provocation factors must all be present before a court can address the issue of whether the defendant abandoned or attempted to abandon the encounter. Read.

Dissent (Yeary, J.):

Judge Yeary agrees with the analysis but would remand the case to the court of appeals to consider harm, rather than reverse and remand to the trial court for a new trial. Read.


This decision reaffirms the fact that we should be very cautious about including a “provoking the difficulty” charge in a self-defense case. The court will strictly apply the legal requirements for that limitation on the defendant’s right of self-defense. The mere fact that the defendant provoked the victim’s attack is not enough. The defendant must have been acting with the intent that his conduct would provoke the victim out of a larger plan to do the victim harm. In other words, the defendant must have intended the victim’s response to his provocation to be a pretext for killing the victim. If you really believe that the jury should be charged on “provoking the difficulty,” make sure that the evidence is fully developed as to all three prongs of the test for giving the instruction—especially the third prong. In this case, the court viewed the claim that the third prong was met by circumstantial evidence as merely speculative.


Wood v. State

PD-0061-15         4/6/16


If a defendant does not enter a plea on the record to an enhancement allegation, is the appeals court bound to presume the accuracy of the trial court’s judgment under Rule of Appellate Procedure 44.2(c)?


Not necessarily. The judgment in this case stated that the defendant pled true to the enhancement; however, the remainder of the trial court record shows nothing to support this and actually indicates the defendant pled not guilty to the indictment and disputed his guilt and punishment. In such a case a court should not presume that the defendant did plead true. However, when looking at the totality of the evidence in the light most favorable to the verdict, there is evidence in this case to support the trial court’s finding of “true” for the punishment enhancement. Read.

Dissent (Keller, P.J.):

Presiding Judge Keller agreed with the majority that application of Rule of Appellate Procedure 44.2 does not require a presumption in this case, but she disagreed that the evidence on the record was sufficient to support a finding of true for the enhancement paragraph. Read.


The defendant may not have affirmatively pleaded “true” to the enhancement paragraph, but he clearly admitted the prior conviction during questioning at the punishment hearing. This is another good decision for helping to prove a defendant’s prior conviction.

Ex parte Garcia

No. WR-83,681-01            4/6/16


Is the procedure for appointing counsel for post-conviction habeas cases fair, particularly for pro se defendants with ineffective assistance of counsel claims?


No written opinion was issued on this application for writ of habeas corpus, but the application was denied.

Concurrence (Keller, P.J.):

Presiding Judge Keller wrote to express her view that Texas is squarely in the mainstream in regards to its procedure of appointing counsel for post-conviction habeas cases—counsel is appointed when “the interests of justice require it.” She also noted that pro se applications in particular are liberally construed to protect defendants. The lack of success for pro se defendants in ineffective assistance of counsel claims is likely not due to defendant applicants who are unaware of legal principles, but rather because their previously appointed counsel was not actually ineffective. Read.

Dissent (Alcala, J.):

Judge Alcala pointed out two systemic issues with ineffective assistance of counsel claims. First, on direct appeal, when a defendant has the right to appointed counsel, it is often difficult to succeed on an ineffectiveness claim due to the need for additional evidence outside the record. Second, in a petition for writ of habeas corpus, a defendant does not necessarily have counsel and may struggle with legal or evidentiary standards required in an ineffectiveness claim. Read.


It is difficult to develop a trend from this decision in light of the absence of an opinion from the court. It may be important to note that two judges joined Judge Keller’s opinion, while only one judge joined Judge Alcala’s.

Texas Courts of Appeals

Brenes v. State (6th COA)

No. 06-15-00108-CR        3/23/16


Was an indictment alleging possession with intent to deliver “Ecstasy or Methylendioxy methamphetamine” valid, even though the proper statutory name in the Health & Safety Code is “3,4-methylenedioxy methamphetamine”?


Yes. An indictment is required to charge: 1) a person 2) with the commission of an offense. While this indictment did not include the “3,4” language, it was clear from the indictment the crime that was being alleged; methylendioxy methamphetamine appears in only one Penalty Group, and possession with intent to deliver it is, at minimum, a state jail felony, so the defendant was on notice that he was being charged with a felony. Read.


By now, everyone should know what Ecstasy is. But when pleading a controlled substance, look to the statutory language in the particular Penalty Group in the Health and Safety Code to avoid any confusion and eliminate the risk that the court of appeals might reverse the conviction.

Lopez v. State (13th COA)

No. 13-14-00753-CR        3/24/16


Did the fact that one officer searched the defendant’s iPod without a warrant require that any information from the phone be suppressed?


No. The fact that one officer may have conducted an illegal search of the iPod does not automatically require suppression whenanother officer obtained a warrant, based on independent sources, to search the device. Additionally, in this case there was some evidence that the defendant abandoned the iPod; therefore the defendant no longer had a reasonable expectation of privacy in its contents. Read.


This is a good application of the independent source doctrine, which the Court of Criminal Appeals recently held was applicable in Texas. I would not rely upon this decision on the alternative expectation of privacy basis—not because that part of the holding is wrong. It is just not fully developed.

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