February 12, 2021

Texas Court of Criminal Appeals

Wheeler v. State

No. PD-0388-19             2/10/21


Does the good-faith exception to Texas’s exclusionary rule allow admission of blood-alcohol evidence seized from a search warrant issued with an unsworn probable-cause affidavit?


No. The officer’s failure to make an oath while signing the affidavit foreclosed any finding that the oath requirement for the affidavit had been satisfied, making the warrant defective. The same officer who failed to sign under oath was objectively unreasonable in executing the warrant he knew was based on an unsworn affidavit. Read opinion.

Dissent (Hervey, J.; Keller, P.J. and Keel, J. joining):

“While it is an officer’s job to present an affidavit to a neutral magistrate, it is the magistrate’s job not to issue a warrant unless all the necessary requirements have been met. And while officers should know that a probable-cause affidavit must be sworn, I do not think that legal training for an objective officer can reasonably be said to include second-guessing a magistrate’s decision to issue a warrant unless the search warrant is facially deficient.” Read opinion.


The majority holds that no objectively reasonable officer would execute a search warrant knowing that it was procured through an unsworn probable-cause affidavit. Well, of course not. But that is not really the question is it? The question should be whether an objectively reasonable police officer can in good faith rely upon a search warrant, which is mistakenly or inadvertently unsworn, while the officer knows that the warrant is properly based upon probable cause and that a neutral magistrate had approved it. The purpose of the good-faith exception should be to prevent reasonable mistakes from resulting in the suppression of evidence. The good-faith exception has never been of particular help to prosecutors or law enforcement, so this decision will probably have little practical effect. This decision should otherwise serve as a good reminder to make sure that the technical requirements of a warrant and its accompanying affidavit are satisfied.

Ex parte Barbee

No. WR-71,070-03        2/10/21


Did the U.S. Supreme Court’s issuance of McCoy v. Louisiana, 138 S.Ct. 1500 (2018) (a defendant has the right to insist that his lawyer refrain from admitting guilt, even when defense counsel believes confessing guilt is the best chance to avoid the death penalty) create a new legal basis for a previous unsuccessful habeas petitioner to file an additional petition for writ of habeas corpus?


No. McCoy is not a new basis for relief because it was a logical extension of Florida v. Nixon, 543 U.S. 175 (2004), which dealt with the same issues. Read opinion.

Concurrence (Walker, J.):

“McCoy was not a logical extension of Nixon, an ineffective assistance of counsel case. McCoy expressly disclaimed reliance on ineffective assistance of counsel case law under Strickland and Cronic, and Nixon is part of that case law. … However, I agree with the majority that [the defendant’s] latest claim does not overcome the statutory procedural bar for subsequent writs because [the defendant] fails to set out a prima facie case that trial counsel usurped his authority to set the goals of his defense.” Read opinion.


Post-conviction prosecutors may see McCoy v. Louisiana getting cited more often by defendants, claiming that their lawyers disregarded their desired strategy. This decision will be helpful in that regard because, not only does the court hold that McCoy is not a new basis for relief, but the court also held that the defendant had failed to allege facts that, if true, would have entitled to him to relief under McCoy.

Texas Courts of Appeals

Ex parte Rinehart

No. 07-20-00219-CR      2/8/21


Was a 10-year period of community supervision illegal in a sentence for state jail felony burglary of a building enhanced to third-degree punishment?


No. Under Penal Code §12.425(a), the enhancement provision for a state jail felony with two prior state jail felonies enhances the punishment range to third-degree level but does not alter the level of the charged offense. Because the applicable range of punishment for a third-degree punishment is 2–10 years, the trial court could order the defendant to serve 10 years of community supervision. Read opinion.


As far as the legal holding goes, this is a pretty straightforward application of §12.425(a). Factually, this is a very unusual case because, at trial, the State actually conceded that the 10-year period of community supervision was incorrect, and the trial judge reduced the period of community supervision to 5 years.

Alfaro v. State

No. 14-19-00143-CR      2/4/21


Is evidence that a defendant engaged in organized crime with two other named conspirators sufficient under §71.02 when a heroin buyer started negotiations with the co-conspirators and moved “up the narcotics supply chain” to the defendant?


No. Although the evidence of the actions and conversations between the co-conspirators was sufficient to show intent to commit one heroin delivery, the Court found the evidence insufficient to show the co-conspirators intended to work together in a continuing course of criminal activity. The Court modified the sentence to reflect a conviction for the lesser-included offense of delivery of a controlled substance between one and four grams. Read opinion.


This is a very fact-bound decision, so it may provide little assistance to the practitioner. But if you have a case of engaging in organized criminal activity, in which the defendant claims that the State cannot prove a continuous course of criminal activity, it might be helpful to read this decision.

Attorney General Opinions

KP-0354            2/9/21


What is the punishment for the maximum vehicle weight limit established by the executive director of the Texas Department of Transportation under Transportation Code §621.102?


While §621.101 specifies maximum weight limitations for vehicles operating over or on a public highway or certain ports-of-entry, §621.102 authorizes the executive director of the Department of Transportation to set different limitations that do not exceed these maximums. Section 621.506 provides a graduated schedule of penalties for violating specified maximum weight statutes but does not include §621.102. Because no statute specifies the penalty for violating §621.102, operating a vehicle in excess of the maximum weight set by the executive director under that section is subject to the catch-all penalties in §621.507.


This is a very short, straightforward application of the relevant statutes.

KP-0352            2/3/21


May a deputy sheriff simultaneously serve as an elected alderman of a Type-A general-law city?


The separation of powers provision of Article II, §1 of the Texas Constitution does not apply to officers of local government. The dual-officeholding prohibition of Article XVI, §40 of the Texas Constitution and the common-law doctrine of incompatibility prevent, in certain circumstances, one person from simultaneously holding two public offices. A deputy sheriff does not hold such an office because a deputy sheriff does not exercise a sovereign function largely independent of the control of others. Thus, neither the separation of powers provision of Article II, §1 of the Constitution, nor the dual-officeholding prohibition in Article XVI, §40, nor the common-law incompatibility doctrine preclude a deputy sheriff from simultaneously serving as a city councilmember. Read opinion.


This is a short, but complicated, discussion of several provisions that impact the question.

Texas Bar rules vote referendum is underway

Paper and electronic ballots were distributed February 2 to all lawyers who are active and in good standing with the State Bar. But with people working from home and spam filters catching some emails, our messages sometimes get lost, so we are posting this announcement so prosecutors are aware it is time to vote.

Lawyers can vote via paper ballot, online ballot, or through the State Bar website at texasbar.com (by clicking the “Vote Now” button). Online voting ends at 5 p.m. CST on March 4, and paper ballots must be received by that deadline.

Eight ballot items are included in the rules vote. Detailed information can be found at texasbar.com/rulesvote, including:

  • Redlined and clean versions of the proposals   
  • Summary of proposed rules   
  • Schedule of public forum CLE webinars (registration is still open for the final forum on February 9) 
  • Other helpful background information 

Additional information on the rules vote is included in the January and February issues of the Texas Bar Journal, which are available at texasbar.com/tbj