December 5, 2013

Texas Court of Criminal Appeals

State v. Bennett

No. PD-0354-12         11/27/13


1)      Can defense counsel be found ineffective for failing to take a specific action on an unsettled question of law?

2)      Is the statute of limitations for aggravated assault three years because it is a “felony not specifically listed” under CCP art. 12.01, or two years under the art. 12.03(d) rule that aggravated offenses carry the same limitations period as their non-aggravated counterpart?


1)      No. If the law is unsettled, there can be no ineffective-assistance-of-counsel claim for choosing a specific course of action supported by caselaw.

2)      The finding that the law is unsettled precludes the opportunity to resolve the statute of limitations issue.

Read the opinon.

Concurrence (Keller, P.J.):

 The statute of limitations for aggravated assault is two years because that is the statute of limitations for regular assault. There is confusion because art. 12.01(7) says that any felony not listed in art. 12.01 has a three-year statute of limitation. But art. 12.03(d) says that except as otherwise noted in chapter 12, the statute of limitations for aggravated crimes is the same as the primary crime. If this was not intended to limit the application of art. 12.03(d) to only the crimes listed in art. 12.01, then art. 12.03(d) would not apply to any offenses, because all aggravated offenses are felonies. Read the concurrence.

Concurrence (Johnson, J.):

 Reading art. 12.03(d) to assign a statute of limitations to aggravated assault of only two years leads to absurd results the legislature could not have intended. Surely, the legislature intended to provide a longer statute of limitations for aggravated assault than for non-aggravated assault. Read the concurrence.

Concurrence (Cochran, J.):

The statute of limitations for all felonies not listed in art. 12.01 is three years, whether they are aggravated or not. There is no persuasive rationale to explain why the legislature would establish a three-year statute of limitations for all felonies except aggravated assault and aggravated perjury. Read the concurrence.

Dissent (Meyers, J.):

Because the appeal involved an unsettled question of law, there was no abuse of discretion at the trial court level when the trial judge granted a motion for new trial. If defense counsel cannot be said to have committed ineffective assistance of counsel for choosing a specific action based on an unsettled question, the trial judge could not have abused his discretion by doing the same thing. Read the dissent.

Dissent (Price, J.):

Judge Keller’s analysis establishes that the statutory language of art. 12.03(d) sets the statute of limitations for aggravated assault at two years. Accordingly, it was ineffective assistance of counsel not to preserve this point for error. Read the dissent.


The holding of this case is that the trial court erred in granting the defendant a new trial based upon a claim of ineffective assistance of counsel. But the underlying holding (which is not really a holding at all) is that the law is unsettled as to the statute of limitations for aggravated assault (and perhaps aggravated perjury as well). The court’s decision clearly invites the Texas Legislature to resolve the discrepancy in Chapter 12 of the Code of Criminal Procedure. The court’s decision is badly divided, so there will not be a consensus in the judiciary anytime soon. The resolution will come only from the Legislature. For the time being, however, I would be uncomfortable in pursuing an aggravated assault charge beyond the two-year statute of limitations. I am not saying, “Do not do it.” I am just uncomfortable. 

State v. Meru

No. PD-1635-12         11/27/13


Is criminal trespass a lesser-included of burglary when the defendant only partially intruded on the property?


No. A lesser-included charge of criminal trespass is not proper when the facts alleged in the indictment specify that only part of the defendant’s body intruded, because trespass requires the intrusion of the defendant’s entire body. However, this does not disturb the Court’s previous ruling that when burglary is committed by a full intrusion of the body, a criminal trespass instruction is permissible. Read the opinion.

Concurrence (Alcala, J.):

Trespass is the functionally equivalent lesser-included charge of burglary, but the majority opinion was still correct because the evidence did not show the defendant intruded with his entire body. Read the concurring opinion.

Concurrence (Price, J.)

The evidence was more than sufficient to support a rational jury finding that the defendant’s entire body intruded into the apartment. Read the concurring opinion.


The court has essentially held that, in most cases, the offense of criminal trespass is not a lesser-included offense of burglary of a habitation. Based upon how you plead the greater offense of burglary, you can now clearly prevent criminal trespass from being a lesser-included offense. But keep in mind that the court’s opinion is divided and could change in the future.

Delafuente v. State

No. PD-0066-13         November 27, 2013


Was a police report that stated a car was impeding traffic by traveling 13 miles per hour below the speed limit sufficient to support a traffic stop that led to a conviction for possession of marijuana?


Yes. The arresting officer’s report documented reasonable suspicion to stop the vehicle for the offense of impeding traffic, as evidenced by the congestion building behind the vehicle during a time that congestion was unusual as well as the officer’s determination the vehicle was travelling at 52 mph in a 65-mph zone. Read the opinion.

Dissent (Alcala, J.):

There was not enough evidence on the record for an appellate court to determine whether there was reasonable suspicion. The police officer’s assertions in the police report were not adequate to establish the State had met its burden, and the case should have abated to the trial court for additional findings of fact. Read the dissent.


If you want to rely upon this decision, read it to make sure your facts support a finding of reasonable suspicion. If the officer made nothing more than a legal conclusion with no supporting facts, it will not be sufficient. The State did not suffer when only the offense report was introduced and admitted into evidence. But I would not make a habit of that. Offense reports, all by themselves, are often insufficient to support an officer’s reasonable-suspicion or probable-cause determinations. And one other thing: If you are driving on a freeway or other similar highway and you are driving significantly slower than the rest of the traffic, stay in the right lane.

Anderson v. State

No. PD-0408-12         11/27/13


When defendants fled a busted drug transaction for 2 ounces of meth, resulting in an officer being injured in a collision with the suspects’ fleeing truck, was the evidence sufficient to find the passenger in the truck guilty as a party to aggravated assault?


Yes. The volume of drugs sold, combined with the distance traveled, the amount of cash possessed by the defendant, and the fact that this transaction had been repeated a number of times between the defendants and the confidential informant should have suggested to the passenger that he would be the target of a bust that could result in violence being used to protect the drugs or escape. Because the hypothetically correct jury charge would have included the “should have been anticipated” language, it was reasonable for the jury to find the passenger should have anticipated the assault on the officer. Read the opinion.


This is a good decision for the State. If you are trying to defend a defendant’s guilt as a party under §7.02(b) of the Penal Code (the so-called “conspiracy theory”), this decision relies upon federal courts’ “reasonably foreseeable” decisions to support a claim that the ultimate offense “should have been anticipated” by the defendant.

Texas Courts of Appeals

Higginbotham v. State

No. 01-12-00547-CR              11/26/13


Did the State commit a Brady violation by destroying a dash-cam video of a DWI stop that showed the defendant was not displaying signs of intoxication when he was initially pulled over?


No. A Brady violation requires the suppressed evidence to be material, which means there is a reasonable probability that the outcome of the trial would have been different if the evidence had been disclosed. This evaluation requires balancing the strength of the exculpatory evidence against the weight of evidence supporting the conviction. The weight of the dash-cam evidence was slight compared to: 1) a video from the DWI room where the defendant showed multiple signs of intoxication and 2) the testimony from the officer, who spoke about the defendant’s inability to perform an FST. Read the opinion.


This decision is very fact-intensive, so it may not be helpful for other cases. Furthermore, the decision does not focus on the requirement of the existence of “bad faith,” which typically shows up in cases dealing with claims of destruction, loss, or failure to preserve allegedly exculpatory evidence.

Sayers v. State

No. 01-12-00712-CR              11/26/13


Did officers conduct an unconstitutional search when, after arresting someone outside of a house, they stood in a flower bed and peered into a kitchen window to find someone to give the arrestee’s keys, leading to the discovery of drug activity inside?


Yes. The officers ignored the home’s front and back doors and instead approached a window in the curtilage of the house that was not located near an established entrance point. They had no reasonable suspicion or probable cause to conduct the search, and they had no license to stand in the flower bed. Officers are not permitted to gather information when they are not permitted to be in the location in the first place. Read the opinion.


This decision is entirely consistent with the United States Supreme Court’s recent holding in Florida v. Jardines and language in that opinion. If the typical person would not want someone approaching his home in a particular way (such as standing in a flowerbed away from any sidewalk, path, or porch), then an officer cannot do it either without violating the Fourth Amendment.

Beard v. State

No. 10-12-00169-CR              11/21/13


Is a defendant’s right of confrontation violated when testimony regarding Intoxilyzer results comes from a technical supervisor who was not the supervisor at the time the defendant’s breath test was submitted?


No. Testimony that interprets printouts from the Intoxilyzer is not testimonial and does not violate the Confrontation Clause. Read the opinion.


This decision is woefully lacking in heavy analysis, so it should not be the only decision upon which you rely if you are trying to admit such evidence. Because the decision involves the hot topic of the Confrontation Clause, expect the Court of Criminal Appeals to review this decision on petition for discretionary review.

Ard v. State

No. 14-12-00654-CR              11/26/13


Was an alleged shoplifter in custody for the purposes of CCP art. 38.22’s recorded statement provision when an officer questioned her in a store’s loss prevention office, and the officer testified that if she had tried to leave, he would have arrested her?


No. Custody is not established during an investigative detention simply because the suspect is not able to leave until the investigation is completed. Even though the officer would have arrested her had she tried to leave, he never threatened to arrest her, and the officer’s unarticulated plan has no bearing on a custody analysis. Read the opinion.


Wow.  This decision is completely consistent with what constitutes “custody” for the purposes of Article 38.22 or Miranda v. Arizona. And it shows why the “gotcha” question by defense counsel, “Was my client free to leave?” is not necessarily determinative of the question of “custody.” Read this decision. It should be very helpful, especially if it withstands discretionary review by the Court of Criminal Appeals.

Texas Attorney General

Opinion For 35th Judicial District

Opinion No. GA-1030            12/3/13


May a sitting JP also serve as a court-appointed investigator to represent a defendant in a felony case?


It is ultimately up to the Commission on Judicial Conduct. Chapter 27 of the Government Code does not directly prohibit it, but the Code of Judicial Conduct might. Read the opinion.


The opinion cites to the provisions of the Code of Judicial Conduct that could be violated by such employment by a justice of the peace. But—as is the common practice by the Attorney General—the opinion did not state whether a violation of the Code of Judicial Conduct would actually occur. That opinion or determination would be made by the Commission on Judicial Conduct.


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