Texas Courts of Appeals
Robinson v. State
No. 01-24-00855-CR 2/19/26
Issue:
Should the trial court have instructed the jury on the “within three years” statutory defense to online solicitation of a minor (Penal Code §33.021(e)) when the investigator posing as a 15-year-old girl was within three years of the defendant’s age?
Holding:
No. A defendant may raise the §32.021(e)(2) defense only if he believed that he was not more than three years older than the minor portrayed by the officer. “The evidence is uncontroverted that Robinson believed he was communicating with a person younger than 17, and that he solicited that person, whom he believed to be 15 years old, to meet him for sex. There is nothing in the record to support that at the time of solicitation, Robinson, who was 38 years old, was within three years of age of the minor he solicited.” Read opinion.
Commentary:
This is an important decision for child-abuse and child-solicitation, and it helpfully relies upon a few other decisions with similar facts. The defendant was relying upon the clear wording of the statute, rather than the clear intent of the legislation. These cases are often made not by stumbling upon conversations that suspects are having with real children, but by undercover officers searching for predators online. The so-called “Romeo and Juliet” defense is for those individuals who are truly close in age to one another. This decision will help in steering trial judges towards the correct interpretation of the statute.
Johnson v. State
No. 05-24-01019-CR 2/23/26
Issue:
Is the State required to prove that a defendant knew he possessed the specific drug named in the indictment?
Holding:
No. In a drug manufacture, possession, or delivery case, the State must prove only that the defendant knowingly possessed a controlled substance. “If we were to require the State to prove that a defendant knew the specific drug and thus chemical makeup of the controlled substance he possessed, would that not imply a requirement to prove the defendant knew which particular penalty group and which particular drug within that penalty group at what particular weight he was possessing in order to prove its case? We do not believe such has ever been required of the State, and we decline to increase its burden today.” Read opinion.
Commentary:
This is a significant decision, especially for narcotics prosecutors. Because there has not been a great deal written on this issue, this decision will likely be reviewed by the Court of Criminal Appeals. This decision is very well-researched and well-organized and relies heavily upon the analysis of the State Bar’s Criminal Pattern Jury Charges.
Aguirre v. State
No. 14-25-00214-CR 2/19/26
Issue:
When a trial judge gives an incorrect comment to a venire panel about the reasonable doubt standard, must the defendant object?
Holding:
No. Just as a judge has committed error when giving an incorrect jury charge about the prosecution’s burden of proof, “the same duty must apply during voir dire. Indeed, our system of justice would make little sense if a judge were required to give an accurate admonishment about reasonable doubt in one stage or trial but was given free rein to discuss that standard inaccurately during another.” In this murder case, the trial judge told the venire panel that the prosecution’s burden of proof “could be satisfied with a level of confidence amounting to a mere ‘60 percent.’” The 14th Court concluded that as decided in Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000), a trial judge should not give a jury a definition for reasonable doubt, and “the trial court here should have avoided any attempt to assign this standard a numerical value.” The Court reversed the conviction and remanded for a new trial. Read opinion.
Commentary:
One can certainly chastise the trial judge for the comment made during voir dire, but this is a very confusing opinion from the court of appeals. The court noted that the defendant “has not brought a claim under [Code of Criminal Procedure] Article 38.05,” which deals with trial court comments on the weight of the evidence, and which provides the basis for the holding by the Court of Criminal Appeals in Proenza v. State that a defendant need not object to a trial court’s comment on the weight of the evidence. Inexplicably, however, the court later holds that “Proenza is binding authority …” How is Proenza binding authority here when the defendant did not raise a claim under Article 38.05? In the immediately following paragraphs, the court of appeals then conflated the trial court’s duty to properly charge the jury with the trial court’s explanation of legal concepts during voir dire. In support of its ultimate holding that defense counsel was not required to object to the trial court’s voir dire comment, the court of appeals relied upon a decision from another court of appeals dealing with an improper “definition” of reasonable doubt by the trial judge, even though—in this case—the court of appeals noted that “the trial court explained [to the jurors during voir dire] that [the burden of proof of beyond a reasonable doubt] has no formal legal definition. …” In finding the judge’s comments in this case to be harmful, the court of appeals also assumed that the error was constitutional in nature because the defendant called it a due process violation for the first time on appeal. But note that the court of appeals found the evidence to be sufficient to support the defendant’s conviction—beyond a reasonable doubt. A review of this decision may give the Court of Criminal Appeals the chance to clear up the law and consider whether a defendant is required to object when the trial judge says something objectionable during voir dire. This might also give the Court of Criminal Appeals the opportunity to decide what the appropriate harm analysis should be.
Texas Attorney General Opinion Requests
RQ-0633-KP 2/23/26
Issue:
May Hood County declare a moratorium on certain types of industrial developments under Local Gov’t Code Subchapter K, §231? Read opinion request.
Requested by:
Matthew Mills, County Attorney in Hood County