Texas Courts of Appeals
Ibarra v. State
No. 14-25-00344-CR 8/4/26
Issue:
Was the evidence sufficient to show that newly constructed homes the defendant burglarized were “habitations” under Penal Code §30.01(1)?
Holding:
Yes. Even though ownership of the new homes had not been transferred from the builders to the buyers, a jury reasonably could have found that the houses were ready to be lived in, with kitchen appliances, a roof, walls, carpeting, and doors. “Although there was no evidence that these houses contained furniture or bedding, or that the houses had previously been used by persons for overnight accommodations, these factors are not dispositive. … We defer to the jury’s resolution of the subjective factual question of whether these newly constructed yet uninhabited houses were of such a character that they were probably intended to accommodate persons overnight.” Read opinion.
Commentary:
In reaching this holding, the court of appeals followed the 1988 decision of the Court of Criminal Appeals in Blankenship, which had overruled the court’s 1976 decision in Jones. These dates should be an indication that this is not an issue that comes up very often. This decision should, therefore, be useful because it is recent and presents all the relevant case law regarding burglary of a vacant habitation. Based upon all the case law referenced, this decision should also hold up if the defendant seeks review with the Court of Criminal Appeals.
Seavey v. State
No. 14-22-00513-CR 8/4/26
Issue:
Did testimony by a deputy medical examiner who did not perform a victim’s autopsy violate the Confrontation Clause?
Holding:
No. Although an expert acting as a substitute witness may not act as a surrogate or mouthpiece for an absent witness’s findings, under Smith v. Arizona, 145 S.Ct. 368 (2024), the Confrontation Clause applies only to testimonial hearsay. “The practical application of the Smith majority for ‘basis evidence’ is: If a testifying expert conveys an absent expert’s out-of-court statement in support of his own opinion, and the testifying expert’s opinion works only if that statement is true, the statement has been offered for its truth and cannot be ‘smuggled’ in as basis testimony.” In this case, the absent expert’s autopsy report was not admitted as evidence at trial and the substitute expert did not quote from or rely on the autopsy report in his testimony. Instead, he directed the jury’s attention to injuries documented in photographs and described what the autopsy photos showed. The Court noted that photos taken during an autopsy are not statements and therefore are nontestimonial for purposes of the Confrontation Clause. “If the State must call a substitute medical examiner, then its case should be built on the admissible evidence—such as photographs, as here—and the substitute medical examiner’s independent analysis, rather than out-of-court conclusions of the absent medical examiner. The Confrontation Clause is a shield against convictions based on the testimonial statements from an absent witness. It is not a rule requiring the exclusion of a qualified medical examiner simply because such expert did not personally perform the underlying autopsy. It is not a rule requiring the exclusion of an expert’s analysis simply because the expert reviews and relies upon underlying information. What the Confrontation Clause forbids is testimonial hearsay that reaches the jury without confrontation.” Read opinion.
Commentary:
This case was before the U.S. Supreme Court when Smith v. Arizona was decided, and the Court remanded the case back to Texas to be decided in light of Smith. The result was the same as it has been before. Smith did not change the law in Texas because, after the decision of the Court of Criminal Appeals in Paredes v. State, Texas prosecutors had stopped calling substitute experts to repeat the statements of the unavailable non-testifying expert. Since Smith was decided, several Texas courts have upheld the testimony of a substitute expert, as long as that substitute is offering his or her own opinion and not repeating statements from the unavailable expert. The substitute expert can review those statements, however, just as any expert can consider inadmissible evidence in arriving at his or her own opinion. Read this decision to see how the testimony was presented. This decision—as well as the other post-Smith decisions—will provide a useful roadmap for presenting substitute expert testimony.