February 28, 2020

Court of Criminal Appeals

Walker v. State

No. PD-0399-17                 2/26/20


If the jury convicts a defendant of a “non-existent” greater offense, can a court of appeals reform the judgment to reflect a conviction for a legitimate lesser-included offense?


Yes. A court of appeals can reform the judgment to reflect a conviction for an actual lesser-included offense if the reformed offense is authorized by the indictment. The Court has recognized as a legal principle that an indictment that fails to allege “the commission of an offense” is not an indictment under the Texas Constitution. Here, the indictment did allege “the commission of an offense.” Read Opinion.


The greater offense charged in this case was engaging in organized criminal activity with the predicate offense of possession of a controlled substance with the intent to deliver. That greater offense is non-existent because that possession offense is not listed as a possible predicate for engaging in organized criminal activity. The court had already issued that holding in its recent decision in Hughitt v. State. But the possession—standing alone—is still an offense, and that is the basis for the court permitting the judgment to be reformed to reflect a conviction for that offense. This decision will probably have application in only a few cases, but it will be helpful if you have such an issue come up.

Texas Courts of Appeals

Ex parte Moon

No. 01-18-01014-CR         2/20/20


  1. Can a juvenile offender certified as an adult challenge the sufficiency of the certification order through a pretrial application for writ of habeas corpus?
  2. Is Family Code §54.02(j) unconstitutional on its face?


  1. No. The defendant’s challenge to the sufficiency of the juvenile court’s findings is not cognizable on pretrial writ. The defendant’s challenge to the transfer order would require the Court to analyze and define terms and construe the meaning of the statute permitting the waiver of jurisdiction, something the Court is not permitted to do at that stage. The appropriate remedy is direct appeal of the discretionary transfer decision under CCP Art. 44.47.
  2. No. Because the defendant failed to show that §54.02(j) is unconstitutional in every respect, the statute is not facially unconstitutional. To prevail on a facial challenge, a party must establish that the statute always operates unconstitutionally in all possible circumstances. Here, the statute is not facially unconstitutional under all possible circumstances because it validly applies to individuals who initially enter the juvenile system when they are over 18 years of age. Read Opinion.

Concurring (Goodman, J.):

“The majority construes [the defendant]’s due-process claim as a facial constitutional challenge to §54.02(j) of the Family Code. Because [the defendant] cannot show that §54.02(j) is unconstitutional as to all persons subject to the statute, the majority reasons, his facial challenge fails. I concur in the majority’s holding. But lurking below the surface is the question whether [the defendant] could raise his due-process claim as an as-applied constitutional challenge to §54.02(j) in this appeal from the denial of a pretrial application for the writ of habeas corpus. Under existing precedent, he cannot. I write to urge reconsideration of this precedent.” Read Opinion.

Concurring (Hightower, J.):

“I join the panel opinion and judgment because I agree that, under the law as it now stands, this intermediate court of appeals must conclude that [the defendant]’s due process challenge is not cognizable by pretrial habeas review. I write separately to address the need for the Court of Criminal Appeals to provide further instruction regarding the framework for analyzing pretrial cognizability questions, especially when, as here, the question implicates a deprivation of significant liberty interests.” Read Opinion.


As a holding on whether a particular issue can be raised by way of an application for a pretrial writ of habeas corpus, this decision is pretty straightforward and non-controversial. But as anyone who has followed juvenile jurisprudence since the original decision of the Court of Criminal Appeals in Moon v. State, issued several years ago knows, the issues involved in these cases have proved to be much more complicated. Nevertheless, the majority opinion in this case should hold up on discretionary review by the Court of Criminal Appeals. The majority opinion represents a thorough and well-reasoned consideration of all of the issues raised by the defendant. Parenthetically, keep in mind that, for the law applicable to this particular case at the time, a juvenile defendant was not permitted to file an interlocutory appeal from the juvenile court’s certification order. Such an interlocutory appeal is now the means by which a juvenile defendant can challenge a juvenile court’s certification order.