August 23, 2019

Texas Courts of Appeals

State v. Pena

No. 03-18-00765-CR    8/13/19


Does an officer’s failure to give statutory warnings under Code of Criminal Procedure Art. 38.22 require suppression under Art. 38.23 of any evidence obtained because of things the suspect said after arrest?


No. An officer’s failure to comply with CCP Art. 38.22 does not in itself violate Art. 38.22. A violation of Art. 38.22 happens only if a statement obtained without complying with the statute’s procedural requirements is later admitted into evidence at trial. Failure to comply with Art. 38.22 does not require exclusion of evidence discovered from that statement under the Texas exclusionary rule (Art. 38.23). Neither is suppression required of evidence obtained as a result of a statement from a suspect who was not properly given Miranda warnings as fruit of the poisonous tree. Read opinion.


This decision is consistent with how the Court of Criminal Appeals has treated violations of Art. 38.22 in the past. Therefore, in this case, evidence recovered from the trunk of the defendant’s vehicle should not have been suppressed by the trial judge, even though the defendant’s statement was obtained in violation of Art. 3822 (as well as Miranda). This fact situation may not come up that often, but this decision will be useful if it does.

Dulin v. State

Nos. 03-18-00523-CR and -00524-CR    8/14/19


Is the time payment fee found in Local Gov’t Code §133.103 unconstitutional on its face?


Yes. Section 133.103(b) & (d) are facially unconstitutional because they violate separation of powers. Austin’s 3rd Court of Appeals joins two other courts of appeals in reaching this holding. See Johnson v. State, 573 S.W.3d 328 (Tex. App. — Houston [14th Dist.] 2019, pet. filed) and King v. State, No. 11-17-00179-CR (Tex. App. — Eastland July 11, 2019, no pet. h.) (mem. op.). Read opinion.


This decision and the decisions that it follows are based upon the holding of the Court of Criminal Appeals in Salinas v. State and the manner in which it dealt with constitutional challenges in court cost cases. Because the court of appeals declared a statute to be unconstitutional, you should fully expect the Court of Criminal Appeals to review this decision. Furthermore, there are already several court cases pending review by the Court of Criminal Appeals. So these constitutional challenges are still very much up in the air. You should also know that—effective January 1, 2020—the most recent session of the Texas Legislature has amended several of the court cost statutes in an apparent attempt to respond to the constitutional challenges that these statutes have received. But the bill also deals with various provisions that impose fees and fines under many different circumstances. For more information, read Senate Bill 346 and 2019-21 Legislative Update (available for purchase on the TDCAA website). But be warned. The bill makes about 150 amendments over many, many different code provisions, and it is over 130 pages long.


TDCAA Annual Update

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Legislative Update Seminars

Join us at our Legislative Update tour this summer! (Click here for online registrations.) We’ll visit more than 20 locations throughout Texas in July and August to teach you, your staff, and your local court and law enforcement communities about all the new laws that will impact your work. If you haven’t already received your brochure listing all the locations and details, a PDF version is available online here. Find a date and location convenient for you and your staff and join us for the big show!

More Information on Hemp

The Texas Forensic Science Commission issued a document describing the impact of the federal farm bill and Texas legislation on forensic analysis of seized drugs in the crime laboratory as well as observations from the Office of Court Administration regarding case filing data. A copy of the document can be found here.