August 29, 2014

Texas Courts of Appeals

Mireles v. State

No. 14-13-00333-CR              8/21/14

No. 14-13-00334-CR             


When the defendant was sentenced to four years in prison for intoxication assault and seven years probation for intoxication manslaughter in a consolidated trial, was the judge allowed to stack those sentences so that the probation could not be served until after the pen time was completed?


Yes. Although §3.03 of the Penal Code says that “sentences” from consolidated trials must run concurrently, Art. 42.08 of the Code of Criminal Procedure says that sentences “imposed or suspended” may run consecutively. That language suggests §3.03 does not apply to suspended sentences, and that the ability to stack probated sentences is governed by Art. 42.08. Read the opinion.


This is an important decision that construes the two statutes in a case in which mandatory consecutive sentences would normally be required, except for the fact that one of the sentences was suspended (probated). Expect that the Court of Criminal Appeals will, therefore, want to review this decision—but the decision should still hold up.  The statutory analysis is sound and makes the most sense. Following the defendant’s construction would require a court to apply inconsistent definitions of the word “sentence,” depending upon which subsection of Section 3.03 the court was reading.

Peyronel v. State

NO. 01-13-00198-CR             8/21/14


When the trial court learned that an unidentified woman who was related to the defendant approached a juror during recess after guilt/innocence and asked them, “How does it feel to convict an innocent man?”, did the judge’s subsequent dismissal of all women in the defendant’s family from the punishment phase of the trial violate the defendant’s right to a public trial?


Yes. Under Waller v. Georgia, 467 U.S. 39 (1984), a court does not err in closing a trial if 1) the party seeking closure advances an overriding interest that is likely to be prejudiced; 2) the closure is no broader than necessary to protect that interest; 3) the trial court considers reasonable alternatives to closing the proceeding; and 4) the trial court makes findings adequate to support the closure. The fact that the court did not conduct an investigation to determine the identity of the person who approached the jury weighed the last three factors against the court’s decision in this case. Read the opinion.


Any time that a trial judge removes a group of people from the courtroom during the trial or even a portion of the trial, red flags should go up. Unless there is a serious need to exclude those people and unless the trial judge has made very specific findings clearly required by caselaw, any conviction (if there is one) is in serious danger of reversal. Show trial judges this case or any of the other cases cited in this opinion, and beg him not to do it.

Saenz v. State

No. 08-12-00344-CR              8/26/14


Did a police officer’s use of extra-statutory language in attempting to obtain consent to providing breath or blood specimen (e.g. “If you blow less than .08, the DA usually drops the charges,”), render the defendant’s consent to the specimen involuntary?


No. Extra-statutory warnings are not determinative of coercion in-and-of themselves, because voluntariness is considered in light of the totality of the circumstances. The warnings would have to be shown to overcome the defendant’s will to render the consent involuntary. Read the opinion.


What a wonderful job by the State in this case, and what a wonderful opinion issued by the court of appeals. The defendant claimed that the trial court could still base its ruling upon Erdman v. State, 861 S.W.2d 890 (Tex. Crim. App. 1993), because the decision that overruled ErdmanFienen v. State, 390 S.W.3d 328 (Tex. Crim. App. 2012)—had not yet been issued.  The court of appeals in this case applied Fienen retroactively and reversed the trial judge’s ruling. That is made all the more remarkable because this was a State’s appeal in which the trial judge had made a finding that he did not believe the testifying police officer. It is quite difficult, if not impossible, to win a State’s appeal from a trial judge’s order granting a motion to suppress if the trial judge has made such a credibility finding. The problem for this trial judge, however, was there was a video that clearly showed that the defendant’s actions in this case were entirely voluntary. Prosecutors really should not need this decision because Erdman is clearly a dead decision, but it is so thoroughly researched and so well-written that you would do well to cite this decision, along with Fienen, to support a ruling that a similar motion to suppress should be denied.

Gillette v. State (on rehearing)                     

No. 13-12-00454-CR             8/26/14

No. 13-12-00455-CR


Are the six different intents listed in the terroristic threat statute, Texas Penal Code §22.07, six different offenses (meaning a jury must be unanimous as to the manner and means), or six different means by which the same offense can be committed (meaning juror unanimity is not required)?


The six intents constitute separate offenses, requiring jury unanimity as to the intent in each case. Read the opinion.


It is difficult to argue with the analysis of the court of appeals. It is thorough and well-researched, specifically noting that each stated intent set forth in the subsections of the statute corresponds to differing, escalating degrees of punishment. A general verdict, without the jury specifying which intent it had found, would leave the trial judge and the parties clueless about what punishment range was applicable to the offense. Nevertheless, this is a very interesting issue, and the Court of Criminal Appeals may want to review this decision. So stay tuned.


Office of the Attorney General

Request for Opinion from the District Attorney for Jim Wheeler County

RQ-1214-GA              8/21/14


May the Wood County Sheriff solicit and/or receive donations directly from the public to be used in a specialized patrol program? Read the request.


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