December 16, 2016

Court of Criminal Appeals

Ex parte Shay

No. WR-84,0007-01          12/14/16


Is a defendant who takes a very favorable plea agreement estopped from challenging that conviction if the offense is later found to be unconstitutional?


No. Regardless of how favorable or unfavorable the defendant’s plea agreement was, an unconstitutional statute is void from its inception, so the estoppel doctrine that prohibits defendants from challenging a “too-lenient” punishment does not apply here. Read.

Dissent (Keller, P.J.):

Presiding Judge Keller would not grant Article 11.07 habeas relief because the defendant is not suffering a “collateral consequence” of his conviction. In her view, the felon-in-possession statute, Penal Code §46.04, does not depend on the validity of the prior conviction that made the defendant a felon—all that matters is that the defendant was classified as a felon at the time he possessed the firearm; any later decision setting aside that prior felony does not retroactively affect the defendant’s status for that purpose. Additionally, she believes the defendant is estopped from claiming the prior conviction as a collateral consequence in this case because without the favorable plea deal on the unconstitutional statute, the defendant would likely have been found guilty of other, more serious, felonies. Read.

Dissent (Yeary, J.):

Judge Yeary dissented because in his view, the defendant should not be eligible for habeas relief based only on a previous opinion that the statute was unconstitutionally overbroad, but he should be required to show it was unconstitutional as applied to him. Read.


This decision is consistent with how a majority of the court has been treating convictions based upon statutes that have been declared unconstitutional. The dissenting judges’ approaches are interesting, but they will probably never carry the day.

Bailey v. State

No. PD-1087-15                 12/14/16


Was it ineffective assistance of counsel for the defendant’s attorney to elicit testimony from a previous defense attorney regarding potentially privileged communications?


No. In this case the defendant intended to elicit testimony from a previous attorney regarding their communications to establish the defense of reasonable excuse for failure to appear. Waiving the privilege for these communications implicitly waived it for other, interwoven communications. The attorney-client privilege was not violated in this case, and it was not ineffective assistance by the defendant’s current counsel to put the previous attorney on the stand. Read.

Dissent (Alcala, J.):

Judge Alcala dissented because “no competent attorney would employ a trial strategy that calls for eliciting privileged communications over his client’s clearly-stated objection on the record.” Read.


This is a rather unusual fact situation, so it is not clear that it will have any precedential value. But it does clearly hold that a defendant cannot use her attorney-client privilege as both a shield and a sword.

Cary v. State

Nos. PD-1341-14 & PD-0445-15  12/14/16


Is the definition of “political contribution” in Penal Code §36.02(d) limited to legal political contributions, i.e., those that do not exceed the maximum amount allowable?


No. The court determined that “political contribution” is defined in Elections Code §251.001, with no regard to other statutes that limit or restrict campaign contributions and expenditures. Thus, any amount of money could be considered a political contribution under §36.02(d), and it is up to the State to show the funds at issue in a bribery case were not contributions used to fund a political campaign. Because of the exception in §36.02(d), if the benefit offered to the recipient is a political contribution of any amount, the defendant has not committed bribery, regardless of his intent. Read Stacy Cary v. State, and David Cary v. State.


This decision appears to be an accurate construction of the statutes involved. But based upon this decision, a political contribution—ANY political contribution—cannot be the basis for a bribery conviction. In this case, the defendant paid $150,000, which the court deemed to be a political contribution—an excessive political contribution, but a political contribution nonetheless. What if it was $500,000? Or $2 million? Surely, the Legislature did not intend this to insulate one from a bribery prosecution. Unless the Legislature revisits the bribery statute, the State will be required to prove the money that provided the basis for the bribery was not a political contribution. And bribers everywhere will now know how to avoid prosecution.

Bullock v. State

No. PD-1453-15                 12/14/16


Did the court incorrectly refuse a lesser-included offense of attempted theft in this case?


Yes. In a case for theft of a truck, the court should have agreed to a jury instruction on attempted theft when there was more than a scintilla of evidence that could support a conviction for attempted theft. There was evidence to support more than two options (guilty or not guilty) in this case, so it was possible for the jury to have found the defendant guilty only of attempted theft, and that jury instruction should have been included. Read.

Concurrence (Yeary, J.):

Judge Yeary concurred and wrote separately to discuss whether the defendant actually “unlawfully appropriated” or “acquired or exercised control” over the truck to support a conviction for theft instead of attempted theft. Read.


This decision could pose a problem for other cases. We have always heard that a jury’s consideration of a lesser-included offense must be rational before a defendant can be entitled to an instruction on that lesser-included offense. In this case, the defendant denied any intent to steal the truck and denied doing anything that he was observed to be doing to steal the truck, such as starting the engine and pushing on the gas pedal. In the face of these denials, it is hard to imagine that any jury would rationally come to the conclusion that the defendant did an act that amounted to more than mere preparation to commit the ultimate offense of theft. The bottom line from this decision is to be very careful in objecting to a defendant’s request for a jury charge on a lesser-included offense.

Texas Courts of Appeals

Enard v. State (14th COA)

No. 14-15-00855-CR         12/8/16


Did the defendant properly preserve error in the trial court at his plea proceeding?


No. The defendant filed a pretrial motion for habeas relief but did not file any motion in the criminal proceeding to quash or dismiss the indictment. A court’s denial of the habeas motion in a separate proceeding with a separate cause number did not preserve error for appeal in the criminal prosecution. Additionally, the defendant’s complaints at the plea proceeding were untimely because he did not assert the issues “at the first opportunity,” but he waited until after he pled guilty and the trial court accepted the plea. Read.


It appears that this defendant attempted to pursue multiple paths to get a statute declared unconstitutional. All of his approaches ended up gaining him nothing. This decision may be of interest only to appellate lawyers, but it is a lesson in picking the right path to victory and sticking to it.


Gonzalez v. State (13th COA)

No. 13-16-00134-CR         12/8/16


Did it violate double-jeopardy to convict the defendant of three counts of DWI with a child passenger when they all arose out of the same traffic crash?


Yes. The “allowable unit of prosecution” of Penal Code §49.045 is “one offense for each incident of driving or operating a vehicle,” not for each child in the vehicle. Read.


This decision follows an Eastland Court of Appeals decision issued earlier this year. We will have to wait and see if the Court of Criminal Appeals takes any interest in this particular double jeopardy issue.

Johnson v. State (2nd)

No. 02-15-00357-CR         12/8/16


Was there sufficient evidence to support the defendant’s multiple theft convictions in this case?


No. In regard to the first count of the indictment, there is no evidence to support the defendant’s conviction for theft because he did not control the money at issue. The defendant was given a check, but under Texas law a check is not money, and the defendant was not a signatory on the account where the check was directed. Without additional evidence of wrongdoing by his wife, the signatory on the account, the defendant also could not be convicted of this count under the theory of party liability. In regard to the second count, the fact that the defendant performed some of the contracted services negates evidence that he intended to steal money when he accepted it. Read.

Dissent (Livingston, J.):

Justice Livingston dissented because in her opinion, after viewing the evidence in the light most favorable to the jury’s guilty verdict, there was evidence that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Read.


This case underscores how difficult it can be to successfully prosecute a defendant for theft based upon breaking a contractual obligation. The facts of this case are horrid, as the money that provided the basis for the theft prosecution was for the proper treatment of loved ones’ bodies at a funeral home. Because there is a dissenting opinion, the Court of Criminal Appeals may want to review this decision.

Office of the Attorney General

Letter from the Brown County Auditor

No. KP-0121        12/12/16


What is the authority of the county attorney in regard to payments made in a pretrial intervention program?


The county attorney may not require a defendant to make payments to the county attorney’s office in excess of those authorized by Code of Criminal Procedure Art. 102.0121. The fees acquired under 102.0121 may be used only for expenses of the prosecutor’s office relating to the defendant’s participation in the pretrial diversion program. Additionally, funds arising out of gifts or grants to the prosecutor’s office under Government Code §45.125 may only be used to fund the operation of the prosecutor’s office, and these may not be comingled with other funds or accounts; the ultimate authority over the disposition of those funds is held by the commissioner’s court. Read.

Commentary: If your office receives such funds in connection with a pretrial diversion (or intervention) program, read this decision and avoid the pitfalls that the opinion raises.

Letter from the Hardin County Attorney

No. KP-0122        12/12/16


Can a police chief simultaneously serve as a constable in the same precinct where the city is located?


Yes. Police chief is not a civil “office” so neither Article XVI of the Texas Constitution nor the common-law doctrine of incompatibility is implicated here. Read.


Do not assume that this opinion will control as to all police chiefs who want to become constables as well. It may be dependent upon the classification of police chief in a particular jurisdiction.

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