August 12, 2016

Texas Courts of Appeals

Carter v. State   (1st COA)

No. 01-14-01006-CR        8/4/2016


When the defendant is arguing self-defense, does the defense counsel’s failure to introduce evidence of gunshot residue on the decedent’s hand constitute ineffective assistance of counsel?


No. In this case counsel for the defendant made a strategic decision not to include the results of the gunshot residue testing because there was no weapon found on the victim and the defendant’s actions could still be self-defense without a weapon. Defense counsel was concerned that if he made his self-defense theory hinge on whether the decedent had fired a gun or not, the jury would reject self-defense when they determined that the decedent did not have a gun. Read.

Dissent (Jennings, J.):

By not introducing evidence of gunshot residue—the only evidence that would have supported an inference that the decedent had a gun—defense counsel left the jury with no evidence the decedent had a gun and undermined his client’s self-defense claim. This “strategy” was objectively unreasonable. Read.


There was no other evidence in this case that the victim had a gun. At trial, defense counsel had asked an expert witness if there was any evidence that the victim had fired a gun, and the expert said that there was not. Understandably, defense counsel did not want the expert to explain why having gunshot residue on one’s hands was not evidence that the person had fired a gun. Gunshot residue was in fact found on several witnesses who were at the crime scene during and after the shooting. Defense counsel instead chose to rely upon apparent danger in support of his self-defense claim, rather than have that claim hinge upon whether the jurors believed that the victim had a gun. So as an ineffective-assistance-of-counsel decision, this case is not unusual. The only thing unique about this case is that there was a dissenting opinion.

Sierra v. State    (1st COA)

No. 01-14-00493-CR        8/4/2016


Can the law of parties cure a failure to charge the offense in question?


No. “The law of parties can be used to prove criminal responsibility without being alleged in the indictment, but it cannot cure a total failure to charge the offense in question.” In this case, the indictment alleged burglary by concealment with intent to commit sexual assault, as opposed to burglary by entry, charging the defendant with a second-degree felony, not a first-degree felony. The trial court classified the offense as a first-degree felony and sentenced him to 30 years.  Even if the law of parties applied, the State would still be required to allege a commission of a first-degree felony in the indictment to authorize a conviction under that section of the burglary statute. Read.


It seems clear that the defendant in this case both entered and remained concealed, and the defendant was admonished on a range of punishment for a first-degree felony. But without a specific finding from the trial judge that the defendant entered the residence, there was nothing for the court of appeals to go on, except what the State had alleged in the indictment—concealment alone. The lesson here is to read that statute and watch how you plead the charging instrument accordingly.

Empey v. State  (2nd COA)

No. 02-14-00407-CR        8/4/2016


Is §31.03(e)(4)(F)—making it a state jail felony to steal any amount of aluminum, bronze, copper, or brass when the theft might otherwise constitute a less-serious offense if measured by the value of the metals—unconstitutional?


No. “The fact that different consequences are authorized by more than one applicable statute does not reduce the notice given to the defendant of the consequences provided in each.” In this case, the defendant stole aluminum bats, skillets, and a chain, valued at around $40, from a junkyard. The State charged the defendant with a state jail felony rather than a Class C misdemeanor. The Court noted that while a statute is void for vagueness if it fails to give a person fair notice that his conduct is forbidden by statute, the fact that the defendant might not know which penalty provisions will be charged does not make the provisions vague. Read.

Concurrence (Sudderth, J.):

Although Justice Sudderth shared the concerns raised by the dissenting opinion, she ultimately concluded this case does not present an opportunity to address the concerns raised. Read.

Dissent (Dauphinot, J.):

Justice Dauphinot expressed concerns over the apparent broadness of this provision of the theft statute. How much of the stolen object must be made of the forbidden metal? Read.


The majority opinion is very well written and thoroughly researched, following the controlling cases from the United States Supreme Court and the Court of Criminal Appeals. As noted by the majority, the concerns raised by the dissenting opinion might be part of a valid as-applied challenge to the statute, but they should not be considered in a facial challenge to the statute that was raised prior to the hearing of any evidence.

Cosino v. State  (10th COA)

No. 10-14-00221-CR        8/3/2016


When the investigating officer of a possible intoxication-related crash is the only trooper on duty in the county and is responsible for cleanup of the crash and investigation, does the State have exigent circumstances to draw blood from the suspect without a warrant?


Yes. The totality of the circumstances surrounding the blood draw made the warrantless seizure of blood reasonable. In this case, the trooper set the first priority at the scene to clear the highway, because it was raining and the trooper wanted to minimize the risk of more accidents on the road. Following cleanup of the wreck, the trooper went to the hospital approximately two and a half hours after the crash to find the defendant being combative with hospital staff. The trooper then asked the nurse to conduct a mandatory blood draw. The totality of the circumstances surrounding the blood draw rendered the warrantless search reasonable. Read.


What a wonderful job that the State did in bringing all of the facts together before the trial judge to show that there were exigent circumstances. And the court’s opinion does a masterful job of presenting those facts and relying upon the most recent cases. If you have an intoxication-related case that occurred in a rural area, this decision might very well be helpful in justifying the officer’s actions. The court also quickly rejected a constitutional challenge to the mandatory blood draw statute, so we could be seeing this case again before the Court of Criminal Appeals.

State v. Bara       (11th COA)

No. 11-15-00158-CR        7/28/16


What is the allowable unit of prosecution for driving while intoxicated with a child passenger?


One offense for each incident of driving or operating a vehicle, regardless of the number of children in the vehicle at the time. In this unpublished opinion, the Court concluded that because the offense is found in the “Intoxication and Alcoholic Beverages Offenses” chapter of the Penal Code, it is a conduct-oriented offense rather than a result-oriented offense. Read.


This is an interesting decision, and it is well written. Because the Court of Criminal Appeals takes a greater interest in double jeopardy cases, it is quite possible that the court will want to review this decision. Stay tuned.


Office of the Attorney General

Letter from the Erath County Attorney

No. KP-0108       8/9/2016


May a nonprofit entity that has offices on land owned by a municipality restrict the licensed carrying of handguns on the property?


Yes. As long as the state agency or political subdivision leasing the property to the private entity has no control over the decision to post such notice, the state agency or political subdivision lessor would not be the entity responsible for the posting and would therefore not be subject to a civil penalty under Government Code §411.209. A court would likely conclude that a license holder who carries a handgun on property that is owned by a governmental entity but leased to a private entity and that is not a premises or other place from which the license holder is prohibited from carrying a handgun under §§46.03 or 46.035 of the Penal Code is excepted from the offenses in §§30.06(a) and 30.07(a) of the Penal Code. Read.


The Attorney General has issued several decisions related to licensed holders carrying handguns on government-owned or -leased property. The Legislature will want to review whether it is its intent that license holders be permitted to carry handguns on these properties, especially schools and other places where large numbers of people gather.

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]