December 11, 2015

Court of Criminal Appeals

Faust v. State

No. PD-0893-14, PD-0894-14       12/9/15


Was Penal Code §38.15(a)(1) unconstitutionally applied to defendants in violation of their First Amendment rights?


No. The police officers in this case had a duty to protect the peace, and the Court found that a skirmish line separating protesters from a parade was a reasonable time, manner, and place restriction of the protesters’ First Amendment speech. The Court also found that the skirmish line was a content-neutral restriction and was narrowly tailored to maintain public safety. Read.

Concurrence (Johnson, J.):

Judge Johnson wrote to express her belief that even if the skirmish line had been unconstitutional, the defendants should not have the authority to disobey or interfere with the police. The proper remedy would be a federal Title 42 U.S.C. §1983 suit against the officers for a violation of constitutional rights. Read.

Concurrence (Yeary, J.):

Judge Yeary wrote that he believes the real issue in this case is that the defendants were not actually exercising their First Amendment speech rights when they interfered with the police in the skirmish line. Instead, the defendants’ actions went beyond speech, and according to the statute, they should not have the authority to interfere with officers even if they believe their rights are being violated. Read.

Dissent (Keller, P.J.):

Judge Keller dissented because she believes the police do not have the authority to implement a time, manner, or place restriction on speech, and that the restriction in this case was not content-neutral. She also disagreed with the concurring opinions that the defendants could have been convicted for interference, even if police actions violated their First Amendment rights. Read.

Dissent (Newell, J.):

Judge Newell dissented because in his view the case was not properly presented to the trial and appeals courts. At trial the defendants presented two separate theories of relief, and neither defendant obtained an adverse ruling on the constitutional challenge to the statute itself; thus, the Court of Appeals should not have ruled on that issue. Read.


This is a very fact-specific decision, and it is quite complicated both in its facts and in the law that is applied. Do not come away from this decision thinking that law enforcement can prevent two groups with opposing viewpoints from demonstrating close to one another. There was a somewhat extensive history with the particular group involved in this case that helped give the police the right to restrict their movement. Furthermore, the decisions amongst the judges on the court are quite divided. Read Presiding Judge Keller’s decision to see why there is an outside shot that the United States Supreme Court may want to review this decision if the defendants decide to file a petition for a writ of certiorari.


Supreme Court of Texas

Department of Public Safety v. Bonilla

No. 14-0694        12/4/15


Did DPS have enough evidence to establish the good-faith element of its official immunity defense in this case?

Holding (per curium):

Yes. The Court specified that the proper test for good faith is that a reasonably prudent officer, under the same or similar circumstances, could have made the same decision. Once this has been proven, the plaintiff has the responsibility to prove that no reasonable person would have made the same judgment. Additionally, the Court held that the officer in this case did consider the need/risk of this situation and alternative courses of action. There are no magic words required to establish this element. Read.


The court held in this per curiam opinion that the officer impliedly considered alternative courses of action. This holding does not necessarily mean that the DPS is going to prevail in this case; the case was remanded to the court of appeals to reconsider the issue.  But this is a good short recitation on the law on “good faith” regarding an officer’s actions. This should not translate to criminal cases, but it should be helpful if an officer is sued in state court.

Texas Courts of Appeals

Thomas v. State (6th COA)

No. 06-14-00110-CR        11/20/15


Was it proper to use an enhanced state jail felony to increase the defendant’s punishment range to that of a second-degree felony?


No. The enhancement statute, Penal Code §12.45, distinguishes felonies depending on whether they are “punishable under §12.35(a).” A prior conviction that is punishable under §12.35(a) may not be combined with one that is not. Even if a state jail felony was enhanced resulting in a punishment greater than 12.35(a) allows, it is still technically punishable under 12.35(a). Under that rule, standard state jail felonies and enhanced state jail felonies are punishable under 12.35(a), and non-state jail felonies and aggravated state jail felonies are never punishable under 12.35(a). It is the classification of the felony that is determinative, not the determination of the punishment. Read.


Enhancement of state jail felony convictions can be quite complicated, and this decision endeavors to simplify the issues involved with charts and explanations. In that respect, this decision should prove to be quite useful when confronting whether and how to enhance a state jail defendant’s punishment.

Wingfield v. State (7th COA)

No. 07-13-00399-CR        11/24/15


Does a negative family violence finding in a previous conviction disqualify that conviction for use under Penal Code §22.01(b)(2)(A)?


No. The language of §22.01(b)(2)(A) does not specify that a family violence finding is necessary; instead, it requires only that there be proof the defendant was previously convicted of an offense listed in that section, committed against someone listed in Family Code  §§71.0021(b), 71.003, or 71.005. If the jury can find the necessary proof, a negative family violence finding does not affect §22.01(b)(2)(A). Read.


This is a decision that all domestic violence prosecutors will need to keep handy.  Just because a prior trial judge has failed or even refused to make a family violence finding in a prior family violence case does not mean that the prior conviction cannot be used to later enhance the defendant’s punishment when he again commits family violence. Just make sure that you can and do present evidence that the prior conviction was in fact a family violence conviction, so that it can be used to enhance the defendant’s punishment.

Parrish v. State (14th COA)

No. 14-14-00828-CR        12/8/15


Does the filing of a defendant’s notice of removal to federal court under 28 U.S.C. §1455(a), regardless of its timeliness, deprive the state court of jurisdiction?


No. To be timely, a notice of removal is required not later than 30 days after arraignment or any time before trial, whichever is earlier, except upon a showing of good cause. In this case the notice was not filed until the time of trial, and no cause was given. All other federal and state courts that have addressed this issue have agreed that when the notice of removal is untimely, the state court retains jurisdiction over the case and may render a judgment. Read.


In addition to being untimely, the defendant’s attempt to remove his case to federal court does not appear to have had any merit to it. One can only conclude that the attempt to remove the case to federal court was nothing more than a delaying tactic. 

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