February 28, 2014

Texas Court of Criminal Appeals

Thuesen v. State

No. AP-76,375                        2/26/14


Are mental illness (namely, post-traumatic stress) and military service for the defendant, a 30-year-old Iraq war veteran, mitigating circumstances per se for a capital murder conviction?


No. The court found no emerging national consensus that would exempt mentally ill people or military veterans from the death penalty. Read the opinion


If a military veteran has committed a violent crime and he raises a possible defense involving post-traumatic stress or something similar, this opinion could be helpful in determining the issues we might confront. There is also a great deal of discussion of victim-related evidence and future danger, which often comes up in death penalty cases. The State introduced a great deal of that evidence in this case, so a review of the decision could be very helpful.

State v. Granville

No. PD-1095-12                     2/26/14


Can police make a warrantless search of a cell-phone in a jail property room that was confiscated as part of a booking-inventory procedure and not incident to arrest?


No. A person retains a legitimate expectation of privacy in the contents of his cell phone when the phone is being temporarily stored in a jail property room. Searching a person’s cell phone is like searching that person’s home desk, computer, bank vault, and medicine cabinet all at once. Read the opinion.

Concurrence (Keller, P.J.):

The State’s legitimate, physical control of the phone does not compromise a person’s expectation of privacy with respect to the electronic data stored on the phone any more than control over a film would compromise an expectation of privacy with respect to the contents of the film. Read the concurrence.  

Dissent (Keasler, J.):

The defendant had a high hurdle to clear to demonstrate he exhibited some conduct reflecting a genuine expectation of privacy in the contents of his phone, and he did not meet that burden. Read the dissent


This opinion is exhaustively researched, and it will be cited for quite some time regarding the propriety of searches of the “contents” of a defendant’s cellular telephone. The court makes it clear that it is not issuing a decision on a search of a cell phone incident to arrest. The U.S. Supreme Court will be doing that (probably this summer) in two cases to be argued on April 29. But the majority here does appear to telegraph its feelings that a search of the “contents” of a cell phone, even incident to an arrest, should be conducted in most situations only with a search warrant. Keep a watchful eye on the Supreme Court, as it will now need to settle the split of authority that has developed over this issue.

Garfias v. State

No. PD-1544-12                     2/26/14


Does a conviction for both aggravated robbery by threat and assault causing bodily injury violate double jeopardy?


No. The two offenses have different gravamina, different allowable units of prosecution, different penalties, and different names and are not contained in the same statutory section. Read the opinion.

Concurrence (Cochran, J.):

Although the outcome of the case is correct, the court should not establish a rule regarding whether there will always be a double-jeopardy violation when these charges are brought together. Read the concurrence. 


This is a very technical decision, and, if it is the first double jeopardy decision you have read from the court, it can be a little confusing. The bottom line is that the State should be able to prosecute both a threat-based robbery and a bodily-injury-based assault (assuming that is how the State has pleaded the offenses).  This is a victory for the prosecution, and it should be helpful in distinguishing other decisions from the CCA upon which the court of appeals relied in finding a double jeopardy violation.

Johnson v. State

No. PD-0193-13                     2/26/14

Issue 1:

Does a claim regarding court costs have to be preserved at trial?

Holding 1: No. Court costs, unlike sentences, are not always imposed in open court; therefore, defendants don’t always have the opportunity to object in open court.

Issue 2:

Does a defendant have to wait until the State attempts to collect court costs to appeal the imposition of the costs?

Holding 2:

No. The appeal is ripe for review as soon as the costs are imposed.

Issue 3:

May a judge order that the record be supplemented with a bill of costs?

Holding 3:

Yes. Although the Rules of Appellate Procedure are silent on this issue, there is no prejudice to the defendant in supplementing the record with a bill of costs.

Issue 4:

Must the record contain a bill of costs to support a particular amount of court costs?

Holding 4:

No. It would be the most efficient way to determine the correct amount, but a bill of costs is not required for review.

Issue 5:

Are court costs subject to a sufficiency review?

Holding 5:

No. Court costs are not punitive, they do not have to be proven at trial, and they do not implement due-process concerns.

Read the opinion.

Concurrence (Cochran, J.):

Defendants should request a bill of costs to be added to the record as early as possible to make the appeals process more accurate and efficient. Read the concurrence.


A review of criminal decisions over the past few years reveals a significant increase in disputes raised about the propriety of court costs in criminal cases. This would no doubt be of some surprise to trial prosecutors because court costs are almost never disputed at trial, and indeed were not disputed at trial in this case. Let’s hope this decision, intended to be a “roadmap” for future litigants, will spell the end to the litigation of court costs issues in appeals from criminal convictions. The last three holdings spelled out above should together bring that to fruition. And if a defendant has a legitimate complaint about the validity of the court costs that he is ultimately required to pay, the court makes clear that Article 103.008 of the Code of Criminal Procedure provides him with that remedy. You may not have been aware of the controversy brewing over these issues, but rest assured that the State gained a significant victory with this decision, even though the State did not prevail on the threshold issues.

Texas Courts of Appeals

Tope v. State

No. 01-12-00959                     2/21/14


When a county adopts pre-trial diversion eligibility policies that automatically exclude certain defendants, is the county violating the separation of powers doctrine by restricting an individual prosecutor’s discretion as to who should be placed in the program?


No. The authority of a county to establish a pre-trial diversion program is itself an exercise of prosecutorial discretion, and that discretion does not interfere with the powers of another branch of government. Read the opinion.


If a defendant complains about the fact that she was not permitted participation in pre-trial diversion, this decision will help. It gives a good explanation of the true nature of pre-trial diversion and its discretionary basis.

Duffey v. State

No. 06-12-00197-CR              2/21/14


Should a trial judge have recused himself after conducting an ex parte meeting with the victim’s family regarding the unfinalized plea deal the judge had agreed to accept?


Yes. Even if the judge had remained completely silent throughout the encounter, an ex parte meeting with a victim’s family objectively undermined public confidence in his impartiality. Read the opinion.


This decision gives a good, brief discussion of some pertinent motion-to-recuse cases that might be helpful to show a trial judge.

Shadden v. State

No. 07-13-00045-CR              2/20/14


1) Did a phoned-in, anonymous tip alleging a woman was being assaulted inside a private residence and a weapon may be present provide sufficient exigent circumstances justifying the warrantless entry of the home?

2) After discovering the woman and escorting her to the front of the house, were a gun and drugs the officer saw on the way admissible under the plain-view doctrine?


1) Yes. Those facts were sufficient to establish a reasonable belief that the officers needed to enter the home to protect or preserve life or avoid serious injury.

2) Yes. The contraband was in plain view from a vantage point where the officer had a right to be due to the exigent circumstances in the case, and the officer had probable cause to associate the contraband with criminal activity. Read the opinion.


The Court of Criminal Appeals will likely want to review at least one of these holdings. Let’s  hope the decision will stand because of the importance in allowing police officers to protect a domestic violence victim. The court of appeals did not discuss the nature of the anonymous tip—whether it was a completely anonymous tip or a tip from a citizen-informant. Keep a watch over this case to see if it holds up.

Ex Parte Zantos-Cuebas

No. 01-13-00958-CR


Can a habeas petition that alleges a defendant did not understand his rights when he made an involuntary plea be dismissed as frivolous by the trial court?


No. A claim that a plea was involuntary because it was not made with awareness of the constitutional rights it waived is a claim with a facially arguable basis in law and fact and must be considered on its merits. Read the opinion.

Dissent (Keyes, J.):

A determination that a habeas applicant was manifestly not entitled to relief does not preclude the possibility that the determination was made on the merits of the case and not the face of the application. Read the dissent.


This decision is a lesson on how to correctly handle the relatively recent legislative creation of the probation writ of habeas corpus under Article 11.072 of the Code of Criminal Procedure. The statute allows for summary disposition of such a claim only if it is truly frivolous. Otherwise, the claim must be fully litigated and the trial court will have to make findings of fact.

Office of the Attorney General

Request for Opinion from the 216th Judicial District Attorney

RQ-1188-GA              2/18/14


If a person is granted an early termination of deferred adjudication community supervision for indecency with a child by contact under the 1988 version of Article 42.12 §5 of the Texas Code of Criminal Procedure, is that a reportable conviction for the purposes of the current version of registration scheme of Chapter 62 of the Texas Code of Criminal Procedure? Read the request.

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