December 20, 2019

Texas Courts of Appeals

Kuykendall v. State

No. 01-18-00930-CR      12/17/19


Do multiple convictions for failure to appear arising from a single missed court appearance subject to the same two-count indictment constitute a double jeopardy violation?


Yes. The defendant is one person who can fail to appear only one time regardless of the number of offenses with which he is charged. Thus, the defendant’s convictions violate double jeopardy. The Court stated this opinion is limited to its facts, and it does not address failure to appear when a defendant facing multiple charges fails to appear at more than one separately scheduled court appearance. Read Opinion.


The court of appeals relies upon two dissenting opinions from a prior decision of the Court of Criminal Appeals in support of its result.  There is little, if any, statutory analysis.  Nevertheless, be aware of this decision if you wish to prosecute a defendant for more than one failure to appear.  Because this a published double jeopardy decision, expect review by the Court of Criminal Appeals.

Dorsey v. State

Nos. 01-18-00520-CR through-00522-CR            12/12/19


Where a defendant simultaneously possesses several firearms, does the imposition of multiple punishments under both subdivisions of Penal Code §46.04(a), unlawful possession of a firearm, violate a defendant’s right against double jeopardy?


No. The legislature, when drafting the statute, specified that an offense can occur in both of two separate circumstances: anywhere, within five years of release from confinement, and in any place other than the premises at which the felon lives. Because the defendant’s particular circumstances included at least two separate prior felonies and the possession of at least two separate firearms in two separate locations, each felon-in-possession conviction was independent of the other. Thus, in the defendant’s situation, double jeopardy cannot attach. Read Opinion.


“The majority’s reasoning disregards the structure, language, and purpose of §46.04(a). Subdivision (1) prohibits a felon from possessing a firearm anywhere, unless five years has elapsed since he was released from confinement or supervision, whichever is later. TEX. PENAL CODE §46.04(a)(1); Mason, 980 S.W.2d at 638–39. After this five-year period, subdivision (2) continues to prohibit a felon from possessing a firearm anywhere except for a single location— the premises where the felon lives. TEX. PENAL CODE §46.04(a)(2); Mason, 980 S.W.2d at 638–39. The statutory scheme is a bifurcated one; under it, a felon either is barred from possessing firearms altogether or is barred from possessing them anywhere but where he lives. A felon is never simultaneously subject to both subdivisions. … I therefore would hold that [the defendant]’s multiple convictions and punishments under section 46.04(a) violate the guarantee against double jeopardy.” Read Opinion.


The majority’s decision appears to turn on the fact that the defendant had two separate prior felony convictions and at least two separate firearms that he possessed in two separate locations.  Keep that in mind when following this decision in your own case.  Just as with the Kuykendall decision above, be cautious about following this double jeopardy decision until the Court of Criminal Appeals has had a chance to review it.

Oseguera-viera v. State

No. 01-18-00459-CR      12/10/19


Is a person’s objective expectation of privacy limited by another person’s ability to access a lost or mislaid cellphone for the purpose of determining ownership?


Yes. The Court held that the trial court did not abuse its discretion in finding that the defendant’s subjective privacy interest was objectively unreasonable. The Court determined that several relevant factors weighed against a finding of objective reasonableness: When the defendant left the phone in the entrance to the store, he no longer exercised dominion or control over it. It became available for a customer to pick up and take to the store’s security officer. The defendant did not take normal precautions to maintain his expectation of privacy. The phone was unlocked and did not have a passcode. He did not mark the phone with his name or information such that access would be unnecessary, nor did he secure it locked on his person so that another person could not pick it up. However, the Court emphasized that its holding was limited to the facts and circumstances of this case. Read Opinion.


This particular cell phone was unlocked and did not have a passcode.  It was not the typical smart phone with which officers are normally confronted. In any event, this is a well-reasoned and well-researched decision.  If you have a cell phone search case, read this decision and the cases upon which it relies.


There will be no case summaries next week. Case summaries will resume after the new year. Merry Christmas and Happy New Year!