February 2, 2018

Texas Court of Criminal Appeals

Ex parte Clay

No. WR-87,763-01           1/31/18


May the same prior felony conviction be used both to establish the defendant’s status as a felon (an element of the offense) and to enhance the range of punishment for the offense?


No. “The trial court has determined, among other things, that Applicant is serving an illegal sentence. The trial court’s findings relevant to the illegal sentence claim are supported by the record. Relief is granted.” Read opinion.

Dissent (Yeary, J.):

“[T]he Court grants relief prematurely. I would not grant relief solely on the basis of the improper enhancement itself—at least not without first addressing the question of whether it is appropriate to grant substantive habeas corpus relief on the basis of such a claim when it could have been raised before. Applicant also alleges that his trial counsel provided constitutionally ineffective assistance of counsel for failing to object to the impermissible enhancement. I would certainly be amenable to remanding the cause for further fact development with respect to this alternative allegation of ineffective assistance of trial counsel. But because the Court grants relief on the substantive claim and refuses to remand the cause for exploration of the ineffective counsel claim, I dissent.” Read opinion.


You will find nothing of import in the majority per curiam opinion, which is only a few sentences long. The importance of this case is found in the analysis of Judge Yeary’s dissenting opinion, which urges the court to squarely address its precedents on this matter in the context of habeas corpus litigation. As such, this decision is only of importance to this particular defendant and perhaps post-conviction habeas corpus prosecutors. If you wish to follow through on behalf of the State with an argument regarding a failure to object, Judge Yeary has shown you the way. But even as noted by Judge Yeary, it is hard to imagine such a defendant not being able to prevail by way of a claim of ineffective assistance of counsel for failing to object.

Texas Attorney General Opinions

Request RQ-0209-KP      1/26/17


Does a gambling establishment that charges a membership or entrance fee but does not take a percentage of the value gambled violate the gambling provisions of the Penal Code? Read request.


This is an interesting request aimed at discovering the legality of poker gambling enterprises. It is hard to tell how broad any response by the Attorney General might be, but it should be noted that the United States Supreme Court is currently in the process of deciding the constitutionality of federal bans on sports gambling in Christie v. National Collegiate Athletic Ass’n.

Request RQ-0207-KP      1/23/17


Is an employee of a district attorney’s office eligible to execute and serve a subpoena under Article 24.01(b)(2) of the Code of Criminal Procedure if the employee is not, at the time of issuance, involved in the proceeding for which the appearance is sought? Read request.


It will also be interesting to see how broadly the Attorney General makes its response to this question. It could potentially apply to law firms and not just district and county attorney’s offices.


TV show “Criminal Confessions” is looking for Texas cases to be featured in their second season. For more information and how to get in touch with the producers, visit our site.

The National District Attorneys Association is holding a Digital Prosecutor training course in San Antonio February 19–22. The course is designed to assist the prosecution team in understanding and utilizing technology in investigation and trial, as well as learning how suspects are using technology. Visit our site for more information.