January 15, 2016

Court of Criminal Appeals

Fernandez v. State

No. PD-0123-15                 1/13/16


Is a county employee guilty of theft by deception when he uses a county credit card to book a flight for county business, but cancels the flight and uses the resulting voucher for personal travel?


Yes. Because the defendant failed to correct the perception that the travel voucher would be used for official county business, his silence was deceptive, and it coerced other officials to give him access to the travel voucher. Read.

Concurrence (Johnson, J.):

Judge Johnson concurred in the judgment but stated that the deception at issue was between the defendant and the county auditor, and that the defendant’s clerk was not an agent of the state able to give consent or approval for county expenses. Read.


The Texas Ethics Commission publishes guides for elected and appointed officials titled “Can I Take It?” Answer: “No.” See https://www.ethics.state.tx.us/main/guides.htm. The majority and concurrence opinions both show how tricky charging a theft can be—yet everyone would agree that what the defendant did is unlawful. There are probably other ways this offense could have been charged—could another charge have been easier to prove?

Marshall v. State

No. PD-0509-14 & PD-0510-14    1/13/16


Was it egregiously harmful to omit the words “bodily injury” from the jury charge in a trial for felony assault of a family member under Penal Code §22.01?


No. While the trial court erred in omitting “bodily injury” from the jury charge, the omission did not entitle the defendant to a reversal because the charge alleged that the defendant “intentionally, knowingly, or recklessly imped[ed] the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck, or by blocking the person’s nose or mouth,” which is a bodily injury per se. Additionally, the court found that evidence of a victim’s inability to take deep breaths, even if the victim does not have a complete loss of the ability to breathe, is sufficient to show an impediment to normal breathing. Read.

Concurring & Dissenting Opinion (Yeary, J.):

Judge Yeary disagreed that intentionally, knowingly, or recklessly impeding the normal breathing of a person constitutes per se bodily injury, and thus, that the defendant suffered egregious harm by the omission of the words “bodily injury” from the jury charge. He would find sufficient evidence for the guilty verdict, however, because in addition to evidence that the defendant held a pillow over the victim’s face, the State also presented evidence that the defendant briefly strangled the victim, and a jury could find the necessary physical contact and pain in strangulation to be bodily injury. Read.


This trip to the CCA was easily avoidable. Do not make an appellate lawyer walk on hot coals and jump through flaming hoops to save a conviction on appeal—spend the time necessary to compare the charging instrument to the jury charge and to the statute underlying the charge. The takeaway here is that a defendant might not be egregiously harmed by jury charge error if an omitted portion of the charge is equivalent to other language in the charge. This is helpful to those handling post-conviction work—but not as helpful as a thorough review of the jury charge at trial.

Texas Courts of Appeals

Koch v. State (1st COA)

No. 01-14-00248-CR        1/12/16


Did the detention of a DWI suspect in the back of a police car rise to the level of a custodial arrest, thus requiring Miranda warnings?


No. The defendant was found in a vehicle that had crashed into a fence and light post on the side of the road. After attempting to leave the scene, he was handcuffed and placed in the back of the patrol car to wait for a specialized DWI officer while other officers investigated the crash, and he was specifically told he was not under arrest and was only being detained. The defendant was held in the car for 14 minutes and driven to a nearby parking lot before being questioned. The court found that due to the wreck and the specific statement that the defendant was not under arrest, this was a proper detention and did not rise to the level of a custodial arrest; thus, the defendant’s statements were admissible even though Miranda warnings had not been given. Read.


This decision will be helpful to DWI prosecutors in the daily grind of DWI enforcement. It is very reflective of the facts on the ground in a typical DWI case, and it will help in those cases where officers need to immobilize a person while they work a scene. The opinion notes a split in authority in Texas, however, so watch this case for future developments.


Office of the Attorney General

Letter from the Texas Forensic Science Commission

KP-0055                1/8/16


What are the responsibilities of the Texas Forensic Science Commission under Art. 39.14 of the Code of Criminal Procedure to “notify relevant parties of exculpatory, impeachment, or mitigating information?”


The Texas Forensic Science Commission has no duty under Art. 39.14(h) to notify relevant parties regarding exculpatory, impeachment, or mitigation information. Local prosecutors are the representatives of the state in criminal matters and Art. 39.14 was designed to impose burdens on prosecutors, not other government agencies. Additionally, the prosecutor member of the Commission does not take on duties due to his position as a member of the Commission; he or she is only responsible for disclosures when acting as the prosecutor for the state. Read.

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