January 10, 2014

Texas Courts of Appeal

Reeder v. State

No. 06-13-00126-CR              1/8/14


Was an implied-consent blood-draw based on the suspect’s two previous DWI convictions unconstitutional under Missouri v. McNeely?


No. McNeely does not invalidate Texas’ implied consent statutes. The McNeely decision deals with whether BAC dissipation constitutes exigent circumstances that would allow a warrantless search. But under Texas’ implied consent statutes, there is no need to rely on exigent circumstances because the suspect has already impliedly consented. Read the opinion.


When McNeely came out, some prosecutors were pretty panicked. This case, along with Smith, now clearly establishes that the Texas implied consent statute survived McNeely. (Clay Abbott is our hero.) That said, many prosecutors have been advising law enforcement to try and obtain warrants even if the implied consent statute applies—should we reconsider? Obtaining a warrant is additional work and represents an additional cost on the criminal justice system. But, until the CCA or the Supreme Court puts the matter to rest, perhaps obtaining a warrant is still the safest advice to give.

Blasdell v. State

No. 09-09-00286-CR              1/8/14


When a well-qualified forensic psychologist testified for the defense that the “weapon focus effect” could prevent a victim from accurately identifying a robber, was the expert’s bare assertion that the theory was valid sufficient to render the opinion “reliable” under Rule 702?


No. Expert testimony from psychologists regarding eyewitness testimony must establish that the testimony relies on principles involved in their field. An ipse dixit from the expert, without being accompanied by empirical data regarding the “weapon focus effect,” does not provide a trial court judge with sufficient information to allow a determination of “reliability.” Read the opinion.


“Because I say so” is not enough to show an expert’s opinion is a reliable application of a scientific technique.

Brooks v. State

No. 06-13-00088-CR              1/2/14


Was the defendant entitled to a mistrial because a juror revealed he had pulled up an article on his smartphone about the victim in the case during voir dire?


No. The juror had not yet been informed not to search for outside information when he pulled the article up. He revealed his search to the judge immediately after being informed for the first time that such searches were not permitted. There was nothing about the defendant in the article, only information about the victim and the victim’s family that eventually came out at trial. Because the juror did not know he was doing anything wrong and because he did not gain any information about the defendant, it was not an abuse of discretion for the trial judge to find no misconduct. Read the opinion.


Every juror in the courthouse has a smartphone, and some counties even provides free WiFi, so this opinion will be a valuable one. If only jurors would stick to playing Candy Crush or Angry Birds instead.

Office of the Attorney General

Opinion for the Office of Court Administration

GA-1035                     1/2/14


Are SB 394 and HB 528, which each amend the same sections of the Code of Criminal Procedure regarding confidentiality of juvenile records in different ways, irreconcilable?


No. Bills are irreconcilable when it is impossible to simultaneously comply with the changes they make. In this case, complying with HB 528 does not prevent compliance with SB 394 and vice-versa.

SB 394 amends Art. 44.2811 of the Code of Criminal Procedure (writs and appeals) to make confidential records relating to a child’s non-traffic, fine-only misdemeanor conviction if the child satisfies the judgment or has received a dismissal after a deferred disposition. HB 528 amends the same article but says the records are confidential if the child has appealed a conviction for a non-traffic, fine-only offense. These changes do not conflict; rather they create independent conditions that trigger the confidentiality of the records.

SB 394 and HB 528 also amend Art. 45.0217 of the Code of Criminal Procedure (juvenile justice courts) in similar fashion. SB 394 creates the same conditions for confidentiality as in the previous section: conviction along with a satisfied judgment or dismissal following deferred. HB 528, however, applies to records of a child who is charged, convicted, acquitted, obtains a dismissal, or is granted deferred. Because HB 528 incorporates SB 394’s conditions along with additional scenarios, the two bills are not irreconcilable because they can be complied with simultaneously. Read the opinion.


A good lesson in statute reading. Most importantly, traffic courts will not need closed sessions for juvenile traffic offenders.

Opinion for the Comptroller of Public Accounts

GA-1034                     1/2/14


Does Government Code §51.608, which says court costs imposed on a defendant are determined by the law in effect at the time of conviction and not the time of arrest, violate federal and state constitutional prohibitions on ex post facto laws?


A court would be unlikely to find that they do. Court costs are generally not considered to be punitive. Read the opinion.


Anybody really think they would construe the statute in a way that harmed revenues?

Opinion for the Navarro County Criminal District Attorney

GA-1036                     1/2/14


May a constable also serve as a commissioner of an emergency service district?


No. Both positions are offices of emolument, and the Texas Constitution prohibits a person from holding more than one such office at the same time. Read the opinion.


Say “emolument” three times quickly.

Opinion for the Washington County Attorney

GA-1037                     1/2/14


Are councils of government “units of general local government” for purposes of the federal HOME investment partnership program?


The attorney general cannot advise on this issue. This is a matter firmly within the discretion of HUD. Read the opinion.


An interesting tactic—the feds will not recognize a COG as a unit of government for the purposes of a program. The COG sought an opinion from the AG that they were. This might work if it was an issue of state law rather than federal law, but in a footnote the AG made it sound like COGs might not be units of government under state law.

Request from the Harris County Attorney

RQ-1177-GA                          1/3/14


Whether, in accordance with an order from a district judge, the Harris County District Clerk may continue to accept for filing applications for protective orders under Family Code Title 4 transmitted via the “FREE Fax” system, although the Supreme Court order amending Tex.R.Civ.P. 21 requires that, effective January 1, 2014, electronic filing must be done through the TexFile electronic filing manager established by the Office of Court Administration; C.A. File No. 13GEN1805. Read the request.

Request from the Bandera County Attorney

RQ-1176-GA                          12/27/13

1) When a person wants to establish financial responsibility under §601.123 of the Texas Transportation Code, by depositing the amount of “at least” $55,000 with the county judge:

a) is the $55,000 adequate to cover more than one vehicle, or should the person be required to deposit an additional amount if the person has more than one vehicle registered in the county; and/or

b) is one deposit of $55,000 adequate if more than one person will be driving a vehicle or should the amount be increased if more than one person will be driving a vehicle?

2) When a person makes a deposit pursuant to §601.123, are the funds to be deposited into a special account, or can the funds be deposited into the registry of the court or into another existing county account?

3) When a person makes a deposit pursuant to §601.123, are the funds required to be deposited into an interest-bearing account?

4) If the funds deposited under §601.123 are deposited into an interest-bearing account:

  • How is the interest to be handled?
    • Is the interest to be paid to the person making the deposit with the county judge, or,
    • is the interest the property of the county?
    • If the interest is to be paid to the person making the deposit, is the county authorized to collect the administration fee allowed by statute before making any distribution of the interest to the person making the deposit?

Read the request.

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