December 9, 2016

Court of Criminal Appeals

Love v. State

No. AP-77,024    12/7/16


Is there a reasonable expectation of privacy in the content of text messages?


Yes. The defendant maintained a reasonable expectation of privacy in the text messages sent and received on his cell phone, even though that information was available to a third party (the cell phone provider). The court compared the cell phone provider to the post office in regards to text message or emails sent by a cell phone: Information about the sender and recipient is visible so there is no expectation of privacy, but the contents of the text messages or emails are protected unless there is a proper warrant to search. And under Code of Criminal Procedure Article 38.23(a), information obtained in violation of the Constitution is not admissible in a criminal case. Read.

Dissent (Keller, P.J.):

Presiding Judge Keller dissented because in her view, the defendant’s Fourth Amendment objection to the cell phone search was not properly preserved, as it was insufficiently specific. Read.


This is a decision that should have been anticipated after this court’s decision in State v. Granville and the decision of the United States Supreme Court in Riley v. California. What you might not have anticipated is that the court would overturn a death penalty case because of the admission of several of the defendant’s text messages. For that, you will need to read the court’s harm analysis in which the numerous text messages revealed the degree to which the State had to rely upon them to show the defendant’s guilt. The bottom line is that, if you want access to a defendant’s text messages or emails, get a warrant.


Henry v. State

No. PD-0511-15                 12/7/16


Was testimony from the defendant and his cousin, admitting previous trips to prison, enough to link the defendant to the alleged enhancement offenses?


Yes. The defendant admitted going to prison for both “aggravated assault” and for “aggravated robbery,” and his cousin’s testimony confirmed the years of these offenses; taken together, it was enough to link the defendant to the prior convictions for enhancement purposes. Read.


This case is not a model for how to connect a defendant to his prior convictions. But it is a good presentation of case law on some different ways that the State can circumstantially show a defendant’s connection to his prior convictions. Read this decision for that purpose.

Asberry v. State

No. PD-1409-15                 12/7/16


When considering a Chapter 64 motion for retesting DNA evidence, should the appeals court review and consider all evidence that was available to the trial court, even if it was not formally entered into evidence?


Yes. The purpose of Chapter 64 permits comparison of the proof offered at trial with the proof currently available and thus necessitates a review of the prior proceedings. And for the court to review the matter de novo, it must access the same evidence as the trial court. Because that evidence is available in the record, judicial economy does not require it be reoffered into evidence at the hearing on the motion. Read.


For hearings like these, a reviewing court should be able to rely upon the trial judge’s experience and knowledge of the particular case. This helpful decision permits that to occur.

Texas Courts of Appeal

Hurlburt v. State (10th COA)

Nos. 10-15-00400-CR, 10-15-00401-CR, 10-15-00402-CR, &10-15-00403-CR            11/30/16


What is the meaning of “in a single criminal action” for the purposes of Code of Criminal Procedure Article 102.073?


Article 102.073(a) reads, “In a single criminal action in which a defendant is convicted of two or more offenses or of multiple counts of the same offense, the court may assess each court cost or fee only once against the defendant.” The phrase “in a single criminal action” should be interpreted as “allegations and evidence of more than one offense … [which] are presented in a single trial or plea proceeding.” In this case the defendant was charged in four separate indictments with four separate offenses, but they were tried together so he can be assessed court costs for only one “criminal action,” not a separate cost for each conviction. Read.


In reaching its decision in these cases, the court relied upon previous interpretations of §§3.02 and 3.03 of the Penal Code. The First Court of Appeals has reached the same holding as to the same issue in another set of cases. We may see the Court of Criminal Appeals consider this issue.


Jacobs v. State (6th COA)

No. 06-16-0008-CR           11/10/16


Did the trial court improperly restrict the defendant’s voir dire when it required him to refer to his prior conviction as an “assaultive offense” rather than a “sexual offense” during voir dire?


Yes. The defendant was attempting to ask commitment questions of the jury pool to determine if his prior conviction for felony carnal knowledge in Louisiana would influence them. By requiring him to refer to that conviction as an “assaultive offense” instead of a “sexual offense,” the trial court limited the defendant’s proper commitment questions and prevented him from determining if potential jurors should be struck for cause. Read.


The questions that defense counsel sought to ask were very specific, naming the child victim of aggravated sexual assault of a child and specifying the particular means by which the offense was committed. But each question was an attempt to make sure that the jurors would find the defendant guilty because the State proved the charged offense beyond a reasonable doubt, and not because the State had presented evidence of the prior sexual offense from Louisiana. The Court of Criminal Appeals may wish to review this decision because the questioning centered on Article 38.37 of the Code of Criminal Procedure and because the court held that a constitutional harm analysis applied to the trial court’s error.

Ortegon v. State (1st COA)

No. 01-15-00880-CR         12/6/16


Is it proper for a trial court to order restitution when the jury that imposed punishment declined to do so?


Yes. Code of Criminal Procedure Article 42.037 states that “the court that sentences a defendant … may order that defendant to make restitution to any victim of the offense.” Additionally, the Court of Criminal Appeals has held that restitution is a victim’s statutory right. See Burt v. State, 445 S.W.3d 752 (2014). There is no law that limits restitution when the jury determines punishment, and because restitution is a “statutory right” for victims, the trial court retains the authority to impose a restitution order. Read.


This is a very helpful decision, permitting a trial judge to order restitution even though the punishment was assessed by the jury and the jurors did not assess any restitution. (They were not asked about that issue.) This is a great decision to show any judge who is reluctant to order restitution.

Office of the Attorney General

Letter from the Chair of the Committee on Criminal Jurisprudence

No. KP-0120        11/29/16


What is the authority of a junior college or community college to prohibit the carrying of concealed handguns in classrooms or other areas where minors are routinely present?


A college cannot categorically prohibit concealed carry on campus due to the presence of minors. However, the president may establish reasonable rules and regulations regarding concealed carry so long as it does not have the effect of generally prohibiting concealed carry on campus. Read.


This opinion is entirely consistent with how the Office of the Attorney General treated carrying handguns at four-year colleges and universities. The practice can be regulated, but it cannot be regulated in such a way that carrying a handgun is prohibited altogether. Stay tuned to the upcoming session of the Texas Legislature, where these issues will almost certainly come up all over again.

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected]