February 9, 2018

Texas Court of Criminal Appeals

State v. Velasquez

No. PD-0228-16                2/7/18


Does Code of Criminal Procedure Art. 28.01 require the trial court to provide additional notice to the State of a hearing on a motion to suppress taking place on the day of trial before voir dire?


No. Art. 28.01 requires notice to both parties only when a pre-trial hearing is set for a date separate from the scheduled trial date. A trial-date suppression hearing is outside the requirements of the statute because there is no separate pre-trial setting and the State is already given notice to appear ready on the trial date. A judge’s decision to conduct a suppression hearing immediately before voir dire rather than after is a scheduling preference solely within the judge’s purview. Read opinion.

Concurrence (Hervey, J.):

“Despite any alleged lack of notice, the State conceded that it had in its possession at the hearing the offense report, but it expressly declined to offer any evidence because it would not participate in ‘this sort of motion to suppress.’ The lack-of-notice issue appears to be more of a ‘straw man’ argument than a legitimate concern. I also find it troubling that the State appeared more interested in ‘taking its ball and going home’ than participating in the proceeding in good faith. If the State had proffered the offense report (and any other information it had), it may have won the suppression hearing. And if not, it could have appealed that decision. TEX. CODE CRIM. PROC. Art. 44.01(a)(5) (the State has the right to appeal an order granting a motion to suppress). It is hard to sympathize with the State under these circumstances. This case seems to be less about a lack of notice than it is about a battle of wills between the prosecutor and the trial judge.” Read opinion.

Dissent (Richardson, J.):

“The plain language reading of the term ‘pre-trial’ means before the trial is set to begin, not before the day the trial is set to begin. Article 28.01 requires notice to both the defendant and the State of the ‘time and place’ of the pre-trial hearing, not the date and place. In this case, the State was not given notice of the time that the trial court was going to conduct the pre-trial hearing on the motion to suppress. The State was only given notice that the trial was to begin on a certain date, presumably at the regular time in the morning that the judge appears on the bench and court is thereafter in session. A jury trial begins with jury selection. A trial court judge certainly has discretion to conduct a pre-trial hearing on the day of trial to resolve preliminary matters. However, I would interpret Article 28.01 as requiring the court to notify both sides of such pre-trial hearing.” Read opinion.


The majority clearly wanted the State to move for a continuance, instead of refusing to participate. It is not clear from this opinion whether the trial judge would have granted such a continuance or whether the majority would have held that the trial court had erred in refusing to grant a continuance. This is a classic case of “bad facts make bad law,” but this decision is in line with how the Court of Criminal Appeals has treated motions to suppress in the past—giving trial courts a great deal of discretion as to how those motions are handled. The bottom line for this decision is that a pre-trial hearing is not a pre-trial hearing for the purposes of Article 28.01 if the hearing is held on the day of trial, even if it is held before jury selection has begun. There is good language in the opinion requiring notice for a pre-trial hearing that actually occurs on a date prior to trial, but it is certainly small consolation to the State in this case.

Texas Courts of Appeals

McFadden v. State

No. 06-17-00040-CR        2/1/18


Is the defendant entitled to a defense of property jury instruction in a murder case when the victim was attempting to set boxes in the defendant’s car on fire?


Yes. Under Penal Code §9.42, a person may use deadly force to prevent an actor from committing arson when he has a reasonable belief that deadly force is immediately necessary to prevent the arson and that the property could not have been protected by any other available means. A defendant is entitled to an affirmative defense instruction when an issue is raised by the evidence, even if the evidence is weak or contradicted. Here, the defendant could have reasonably believed that deadly force was necessary to prevent arson when the victim poured gasoline over boxes in her car trunk and attempted to light them on fire. Read opinion.


This is a very thorough decision, and it is one that prosecutors should read and consider if a defendant raises a defense-of-property claim in an assaultive case, such as a murder prosecution. The jury in this case rejected the defendant’s self-defense claim, and the court of appeals upheld the jury in that regard. But that was not enough to save this case from reversal because of the absence of the requested defense-of-property instruction.

State v. Doyal

No. 09-17-00123-CR        2/7/18


Is Gov’t Code §551.143, prohibiting members of a government body from engaging in secret deliberations to circumvent the Open Meetings Act, unconstitutionally overbroad?


No. The Open Meetings Act requires meetings of governmental bodies, including county commissioners courts, to be open to the public. Section 551.143 is subject to intermediate scrutiny because it is directed toward conduct: the act of conspiring to circumvent the Open Meetings Act by meeting in less than a quorum for the purpose of secret deliberations in violation of the Open Meetings Act. Section 551.143 is reasonably related to the State’s legitimate interest in assuring transparency in public proceedings and encouraging public discussion. Read opinion.


This decision does not address the sufficiency of the evidence to support the prosecution, nor does it address any as-applied constitutionality of the statute. The decision addresses only the facial constitutionality of the statute. In that regard, the decision is well-written and thorough. The court relied in part upon a decision of the Fifth Circuit Court of Appeals in Asgeirsson v Abbott, 696 F.3d 454 (5th Cir. 2012), in which that court upheld the constitutionality of §551.144, a similar statute. Prosecutors should definitely read these decisions if prosecuting a violation of the Open Meetings Act.


A note about online Brady training

It’s been four years since mandatory Brady training was implemented, and many prosecutors will require recertification in 2018. TDCAA is working on an updated online training that will be available later this year. In the meantime, the 2014 training will remain on the website for any new prosecutors to take, but prosecutors requiring recertification cannot receive credit again for the same course. Stay tuned for more information on the new and improved training!


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.