December 18. 2015

Court of Criminal Appeals

State v. Villarreal

PD-0306-14         12/16/15


Was the State’s motion for rehearing of Villarreal properly granted?

Holding (per curium):

No. The Court determined that State’s motion for rehearing was improvidently granted, and any further motions are denied. Read.

Concurrence (Meyers, J.):

Judge Meyers wrote to explain that he no longer agrees with his dissent in the original case and that he no longer believes Transportation Code §724.012(b)(3)(B) creates a valid exception to the warrant requirement for a blood draw in intoxication cases. Read.

Concurrence (Richardson, J.):

Judge Richardson contended that Transportation Code §724.012(b)(3)(B) does not create an exception to the Fourth Amendment’s warrant requirement and that it may be difficult or impossible for the Legislature to create a statutory exception to this requirement if lawmakers so desired. Read.

Concurrence (Newell, J.):

Judge Newell wrote in support of the original Villarreal opinion, stating that under a proper Fourth Amendment balancing test, a per se warrantless blood draw based on the criminal record of the subject and the dissipation of alcohol is not permissible. He pointed out that this holding does not affect the ability of police to get a warrantless blood draw in exigent circumstances or another exception to the warrant requirement. Read.

Dissent (Keasler, J.):

Judge Keasler dissented from this decision and would withdraw the Court’s original opinion in this case and hold the blood search of the defendant Villarreal reasonable. Judge Keasler acknowledged that there is no per se exigency for a warrantless search due to the dissipation of alcohol, but Judge Keasler wrote that due to Villarreal’s status as a prior DWI offender, Villarreal has a lower expectation of privacy and that this warrantless search was nonetheless reasonable. Read.

Dissent (Yeary, J.):

Judge Yeary agreed that generally the Fourth Amendment would not allow a warrantless blood draw for the suspicion of drunk driving; however, he contended that multiple prior convictions for DWI changes the balance and that Transportation Code §724.012(b)(3)(B) is reasonable and constitutionally acceptable. Read.


Well, this is about as anti-climactic as you can get. The old court issued the original decision back in November 2014. The new court granted the State’s motion for rehearing in February—and there it sat on the court’s docket, while courts of appeals continued to follow the old court’s November decision, and all of us waited for what was assumed was going to be a new decision from the court. One wonders why it took the new court so long to say, “Never mind.” The intermediate courts of appeals have uniformly been rejecting any suggestion that a warrantless blood draw can be upheld solely on the implied consent law and/or the mandatory blood draw statute. It would appear that the only way a warrantless blood draw will be upheld is with actual voluntary consent or exigent circumstances. The court has clearly struggled for quite some time to reach this non-decision, so I would not hold your breath for any further guidance from the court on this issue in the near future. 

State v. Rendon

No. PD-0013-15, PD-0015-15       12/16/15


Is it a Fourth Amendment search to bring a trained drug-sniffing dog directly to the front door of an apartment for the purpose of a canine-narcotics sniff? 


Yes. Bringing a drug-detection dog to the front of a home is a physical intrusion into the curtilage surrounding a home that exceeded any express or implied license, and thus was a warrantless search under the Fourth Amendment. This holding is consistent with the U.S. Supreme Court in Florida v. Jardines, 133 S. Ct. 1409 (2013). Read.

Concurrence (Richardson, J.):

Judge Richardson wrote to expound on the idea that even apartment dwellers are afforded some curtilage space surrounding their homes and that the front-door threshold to an apartment should not be considered any type of common-area. Read.

Dissent (Yeary, J.):

Judge Yeary disagreed that the area immediately surrounding this defendant’s front door should be considered curtilage. While it is in close proximity to his home, there were no efforts made by the defendant to enclose the area or obscure the public’s view. He also argued that Jardines does not fit with previous U.S. Supreme Court decisions about drug-detection dogs and that there is no expectation of privacy in possessing narcotics. Read.


One might have expected this extension of Florida v. Jardines to the front door of an apartment, but it seems pretty silly when you think about it. Anyone can walk by the front door of an apartment, including even a dog, without anyone thinking that there has been any infringement of the apartment dweller’s curtilage. The court does not reach the ability of a person to walk up to the front door of an apartment, but caselaw has routinely allowed law enforcement officers to walk up to the front door of an apartment, knock on the door, and say “Hi” to anyone who answers the door. What if the officer smells marijuana at that time? What if the officer has brought his dog with him, with the dog keeping a careful distance until the door is voluntarily opened, and the dog then alerts on illegal narcotics?


Mays v. State

No. AP-77,055   12/16/15


Did the trial court err in denying the defendant’s motion for competency proceedings challenging his competency to be executed?


Yes. A “substantial showing” of incompetence requires more than just some evidence but does not rise to the level of preponderance of the evidence, and these decisions should be reviewed de novo. The Court found that the defendant made a substantial showing that he is incompetent to be executed; thus, the case should be remanded to the trial court for further competency proceedings under Code of Criminal Procedure Art. 46.05, including the appointment of mental-health experts. Read.

Dissent (Keller, P.J.):

Judge Keller wrote to distinguish mental illness from incompetence to be executed and believes that the defendant has shown evidence only of the former. Read.


This may be an indication that the court will lean toward a finding of incompetence to be executed. One might have thought that a “substantial showing” was more than a preponderance of the evidence. One might have also thought that there would be some deference paid to a fact-finder at the trial court level. That is not the case. So it appears that it will be quite easy for a defendant to show that he is incompetent to be executed. 

Donaldson v. State

No. PD-0572-14, PD-0573-14       12/16/15


Can a court of appeals imply a trial court’s finding of true regarding an enhancement paragraph when the defendant has pled true but the trial court specifically declined to make a finding?


No. When a defendant pleads “true” to an enhancement paragraph, an appellate court can imply a true finding when supported by the record, even if there is no express finding by the trial court. However, in this case the trial court explicitly refused to make a finding and expressed concern about using the prior conviction in that enhancement paragraph. Because there is no evidence the trial court intended a true finding in relation to this specific enhancement, the sentence imposed was illegal and a new punishment hearing is necessary. Read.


Let’s hope that this fact situation will be the exception. In most cases, we should still be able to imply the trial court’s finding of “true” after a defendant’s plea of “true.” This trial judge seemed to have legitimate concerns about his ability to make a valid finding of “true.” One hopes that trial judges will not read this decision and utter some vague concerns about a finding of “true” because they want to limit the amount of prison time to which defendants can be exposed.

Ford v. State

No. PD-1396-14                 12/16/15


Was the State’s acquisition of four days of cell-site location information, gathered by AT&T as business records, a Fourth Amendment violation?


No. Because the cell-site data was gathered and maintained by AT&T, a third-party cell-phone provider, and collected for the benefit of the company, not the State, the defendant did not have a reasonable expectation of privacy in the information. It was not a Fourth Amendment violation for the State to acquire this data through a court order showing probable cause under Article 18.21, §5(a) of the Texas Code of Criminal Procedure. Read.


This is a decision rendered under the Fourth Amendment, and it faithfully follows Supreme Court precedent on this matter. But the decision should not be read as a holding concerning the requirements of Article 18.21, which in many ways provides a defendant greater protection than the Fourth Amendment. And, as noted by the court, there are rumblings in the federal appellate courts suggesting that warrantless gathering of such cell-site data from third parties is invalid, even under the Fourth Amendment. So it is entirely possible that the Supreme Court will be called upon very soon to issue a new decision giving defendants a greater expectation of privacy under the Fourth Amendment in such cases. Stay tuned.

Green v. State

No. PD-0738-14                 12/16/15


Was it error for a trial court to define the terms “penetration” and “female sex organ” in jury instructions?


Yes. These terms are not defined in the Penal Code statute for aggravated sexual assault; thus, the trial court should not have defined them for the jury. However, the Court disagreed that the defendant was harmed by the incorrect instructions in this case. Read.

Dissent (Richardson, J.):

Judge Richardson agreed that it was improper for the trial court to include the definitions in their jury instructions, but he does find that the inclusion harmed the defendant. He would find that the definitions caused “some harm” and may have influenced the jury’s verdict. Read.


Prosecutors should be able to show this decision to a trial judge if he is considering putting a non-statutory definition in the jury charge. But be careful: Courts have not been entirely uniform in prohibiting non-statutory definitions in criminal jury charges.

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