December 1, 2017

Court of Criminal Appeals of Texas

Bohannan v. State

No. PD-0347-15                11/22/17


Can a conviction for violating a civil commitment order be upheld when the underlying commitment order has been reversed on appeal?


Yes. A civil commitment order is effective immediately upon entry, even if appealed. Once the order is issued, the defendant is required to follow it until reversed. An eventual reversal does not excuse violations of the order before it was reversed. Read opinion.


This decision is controlled by the court’s prior decision in Stevenson v. State, 499 S.W.3d 842 (Tex. Crim. App. 2016). The court also discusses several other similar cases and how they apply or do not apply to this fact situation. This decision should be very helpful if you have a similar fact situation, but do not get carried away; it seems clear that the defendant could not be prosecuted for any alleged violations that occurred after his order had been reversed.

Ex parte Beck

No. PD-0618-16                11/22/17


May a defendant challenge the facial constitutionality of a statute for the first time in a post-conviction habeas writ when the statute at issue has never been declared facially unconstitutional by any court with binding authority?


No. As a general rule, a first-time challenge to the facial constitutionality of a statute may not be presented in a post-conviction habeas proceeding. Facial constitutional challenges must be preserved during the trial proceedings. However, challenges to a conviction under a statute that has already been declared facially unconstitutional are allowed because such a statute is “void from its inception” and treated “as if it had never been.” Here, the defendant was convicted under the improper-relationship statute (Penal Code §21.12), which references the former online-solicitation statute (Penal Code §33.021). Although the online-solicitation statue was found to be facially unconstitutional, this does not automatically invalidate the improper-relationship statute, nor can the defendant challenge it for the first time in a post-conviction writ. Read opinion.

Concurrence (Yeary, J.):

The exception that allows a defendant to receive habeas relief for a conviction under a statute that has been previously declared unconstitutionally overbroad should be limited only to defendants who can demonstrate that the statute was unconstitutional as applied to their own conduct. Read opinion.


This is not a decision on the constitutionality or unconstitutionality of the improper-relationship statute. This decision is solely about the proper way to consider a facial constitutional challenge in an application for a post-conviction writ of habeas corpus. The improper-relationship statute has not yet been declared unconstitutional, even that portion of the statute that is based upon conduct under §33.021(b) of the Penal Code (online solicitation of a minor), a prior version of which was declared facially unconstitutional in Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2010). If you are you looking for any ammunition in support of an argument that the improper-relationship statute is constitutional, you will not find it with this decision, but footnote 15 might give you a starting point.

Ex parte Johnson

No. WR-85,192-01           11/22/17


May a defendant bring a claim that the Parole Board is not complying with a statute in a writ of habeas corpus?


No. The Court overrules Ex Parte Sepeda, 506 S.W.3d 25, which stated that habeas relief was an appropriate remedy to compel the Parole Board to comply with a statute. A claim that the Parole Board is not complying with a statute does not allege a constitutional violation or a jurisdictional defect that would be cognizable in a post-conviction habeas writ. Read opinion.

Concurrence (Keasler, J.):

Although the defendant is not entitled to relief through writ nor mandamus, the Parole Board policy could be changed to address the defendant’s concern about parole eligibility for consecutive sentences while still avoiding the inefficiency of parole reviews when the defendant cannot actually be released due to the sentences being served consecutively and concurrently to the parole-eligible one. On the date that the defendant would be eligible for actual parole on all sentences, the Board may retroactively consider the defendant for “parole” on the first sentence and, if it would have been suitable, grant him “parole” backdated to the original eligible date so that the consecutive sentence is considered to have started at that time. This gives the defendant the opportunity to receive the credit towards the second sentence that he claims is unfairly being withheld, but it does not require the Board to conduct additional hearings before it is necessary. Read opinion.

Dissent (Alcala, J.):

“Can the parole board disregard applicable statutes without any judicial oversight? After today’s majority opinion, the answer to this question is ‘Yes.’ … I would grant either habeas or mandamus relief to [the defendant]. I would hold that, when, as here, an inmate is serving two sentences concurrently but he also has a yet-to-commence third sentence that will be served consecutively to the shorter of his concurrent sentences, the parole board must consider him for parole on his shorter concurrent sentence at the point at which he becomes statutorily eligible for parole on that sentence.” Read opinion.

Dissent (Walker, J.):

“The Court today holds that mandamus relief is not warranted for [the defendant], who is seeking relief from a parole policy of holding a parole vote on all of an inmate’s concurrent sentences only when the inmate’s controlling sentence is eligible for parole. In my view, the parole authorities are failing to perform a ministerial duty imposed by one of the Board of Pardons and Paroles’s own valid regulations, the policy is improper, and [the defendant] should be granted mandamus relief.” Read opinion.


The Court was badly divided in this case, so we might see a change in this holding in the near future. Keep an eye out for any updates.

Texas Courts of Appeals

Flores v. State

No. 04-16-00502-CR         11/15/17


Does Code of Criminal Procedure Art. 21.15 require the indictment to allege the acts relied upon to constitute recklessness in a manslaughter charge?


Yes. Under CCP Art. 21.15, the State must allege circumstances which indicate that the defendant “was aware of the risk and acted in conscious disregard of that risk.” Here, alleging that the defendant drove “at an excessive rate of speed above the posted speed limit” does not give sufficient notice under CCP 21.15. Driving above the speed limit is not inherently reckless behavior, so more specificity about how the defendant’s speed was reckless is required. Read opinion.


This is a horrible decision. The State alleged that the defendant committed the offense of manslaughter by “driving and operating a motor vehicle at an excessive rate of speed above the posted speed limit, or by driving and operating a motor vehicle straight through a left-turn only lane in an attempt to pass another motor vehicle, or by racing another motor vehicle in a public place, or by any combination of said three acts, thereby causing a motor vehicle to collide with another motor vehicle.” If that is not enough to comply with Article 21.15, the Court of Criminal Appeals should grant review of this decision and say so. It is possible that the court of appeals based its decision, at least in part, on the disjunctive pleading (use of the word “or”). Although it should not make a difference in this context, perhaps this might be a good time to remind ourselves that it is permissible to charge (plead in an indictment or information) in the conjunctive (use of the word “and”).

Allen v. State

No. 01-16-00768-CR         11/28/17


Is the “Summoning Witness/Mileage” fee assessed under Code of Criminal Procedure Art. 102.011(a)(3)(b) facially unconstitutional?


Yes. A fee assessed against a defendant violates the Separation of Powers clause of the Texas Constitution if the money collected is directed toward the general revenue fund of the state or county and is not directed by statute for a criminal justice purpose. The constitutional infirmity is the statute’s failure to direct the funds received from the fee to be used in a manner that would constitute a court cost (i.e., for a criminal justice purpose). Read opinion.


This decision follows prior decisions from the Court of Criminal Appeals on this matter. Be aware of it and the decisions it cites if you are confronted with this type of argument.