January 17, 2020

Court of Criminal Appeals

Dixon v. State

No. PD-0048-19          1/15/20


1. Was admission of cell-site location information (CSLI) obtained through a court order rather than a warrant harmful when used to determine the defendant’s location on the day of the murder?

2. Did the judge violate the defendant’s right to an open courtroom by limiting spectators to only those who could sit and prohibiting those who would have to stand?

Holdings (Keller, P.J.):

1. No. Admission of the CSLI information was harmless because the CSLI information was not particularly significant in light of other evidence. Because this was a murder-for-hire case, the evidence did not have to show the defendant’s specific location during the day of the murder, much less on a particular day. In fact, the evidence showed that the defendant was not in the same city as the victim on the day of the murder. Thus, the defendant’s presence was not particularly important to this prosecution. As for the State’s use of the CSLI to impeach the defendant’s credibility, there was other evidence that seriously undermined his credibility.

2. No. By using the county’s largest courtroom and allowing spectators to be seated until the courtroom was full, the trial court protected the right to an open hearing, which is intended to guarantee a fair proceeding for the defendant. Moreover, the exclusion of spectators from the courtroom because the courtroom is full is not by itself a violation of the right to a public trial. Read Opinion.

Concurring (Hervey, J. joined by Keasler and Newell, JJ.):

“I join the Court’s opinion because I agree that the admission of the historical CSLI records in this case was harmless under the Fourth Amendment exclusionary rule. But I write separately to address the court of appeal’s analysis and our decision in Love v. State, 543 S.W.3d 835, 845 (Tex. Crim. App. 2016), which the lower court relies on. Violations of statutes are reviewed for non-constitutional harm, not constitutional harm. Thus, we erred when we analyzed the statutory error in that case for constitutional harm. Consequently, we should overrule that part of our opinion at our earliest opportunity. Erroneously assessing harm under the much higher constitutional-harm standard unfairly punishes the State.” Read Opinion.


There are probably a number of cases currently in appellate orbit where CSLI was admitted at trial in violation of the U.S. Supreme Court’s holding in Carpenter. This case gives you a roadmap to craft a harmless error argument. The Court’s treatment of the closed courtroom issue is valuable in two respects. First, closed courtroom claims are subject to the usual contemporaneous objection rules. Thus, a defendant must raise the claim at trial and get a ruling to obtain reversal on appeal for an illegal court closure. Second, the Court reaffirms that the trial judge can control the use of the courtroom to a certain extent, such as when spectators can enter and leave and whether spectators can stand.

Simpson v. State

No. PD-0578-18          1/15/20


Does a defendant’s plea of “true” in a probation revocation hearing preclude the defendant from claiming self-defense in a subsequent criminal trial?

Holding (Keasler, J.):

No. A criminal defendant, consistent with her plea of “true” in an earlier revocation proceeding, may plead “not guilty” in a subsequent criminal trial. And in that trial, the defendant’s earlier plea of “true” will not preclude her from receiving any defensive instruction to which she is otherwise legally entitled. The Texas common law does not support the State’s use of collateral estoppel in these circumstances. Read Opinion.

Concurring (Keller, P.J.):

“As to the finding of true, I agree with the Court that such a finding in a probation revocation hearing can have no preclusive effect on the litigation of self-defense at a criminal trial because the State’s burden of proof in a revocation hearing (preponderance of the evidence) is less than its burden on the issue of self-defense at a criminal trial (beyond a reasonable doubt).” Read Opinion.

Concurring (Slaughter, J.):

“I agree with the Court that a defendant’s plea of “true” to the State’s allegations in a revocation proceeding does not preclude [the defendant] from raising any defense she wishes to raise in a subsequent criminal proceeding. I write separately, however, to clarify that I believe a defendant’s plea of “true” in a revocation proceeding is a judicial admission of guilt that can be used as evidence against the defendant in a subsequent criminal proceeding.” Read Opinion.


This case is a book-end to the Court’s opinion in State v. Waters, 560 S.W.3d 651 (Tex. Crim. App. 2018), where it held that collateral estoppel did not prevent the State from prosecuting a defendant for a crime even though it had previously failed to revoke his probation based on the same crime.

Texas Courts of Appeals

State v. Hodges

No. 07-19-00237-CR               1/8/20


Is an affidavit considered effective when an oath was not administered to the affiant who signed it?


No. According to the Court of Criminal Appeals in Clay v. State, 391 S.W.3d 94 (Tex. Crim. App. 2013), “before a written statement in support of a search warrant will constitute a ‘sworn affidavit,’ the necessary oath must be administered ‘before’ a magistrate or other qualified office. Here, no one administered any type of oath to the officer who signed the affidavit. Nor did the magistrate to whom they presented the affidavit and warrant application administer any oath to assess the truthfulness of the officer’s statements. While some Texas intermediate appellate courts have attempted to dispense with the need for an administered oath, the Amarillo court stated it was bound to follow precedent from the Court of Criminal Appeals. Read Opinion.


We will run into more issues like this as the criminal justice system continues to grow and accelerate. Prosecutors cannot assume that just because someone has a notary stamp or is legally authorized to administer an oath, he knows how to administer an oath. And here, the Court holds that oath-like language in the affidavit does not suffice in the absence of some form of oath administered to the affiant. This issue is percolating in other courts of appeals—watch for the Court of Criminal Appeals to address the issue.

State v. Meras

No. 10-18-00345-CR


Can an individual violate §545.060(a) of the Texas Transportation Code by failing to stay within a lane regardless of whether anything unsafe occurs?


Yes. The Court agreed with the plurality’s decision in Leming and the reasoning to support that decision. Specifically, the Court agreed that it is an independent offense to fail to remain entirely within a marked lane of traffic when it is otherwise practical to do so, regardless of whether the deviation from the marked lane is, under the particular circumstances, unsafe. Leming v. State, 493 S.W.3d 552, 559-60 (Tex. Crim. App. 2016). Read Opinion.


A clear and concise opinion on the offense of failure to stay within a lane. If the Court of Criminal Appeals reviews this decision it will reach the issue that did not garner a majority holding in Leming.

Texas Attorney General

KP-0284          1/6/20


1. Does Health & Safety Code §822.002, which governs the regulation of dogs that attack persons or are a danger to persons, require the affiant to have personal knowledge of the facts contained in the “sworn complaint”?

2. Does non-provocation constitute an element that one must prove before a court may order a dog destroyed under §822.003?

3. Does the requirement in §822.003(a)—that a court conduct a hearing within 10 days after the date on which a warrant is issued to seize a dog that caused death or serious bodily injury to person—limit the court’s inherent authority to control its docket?


1. No. The plain language of §822.002 does not require an affiant of a sworn complaint alleging that a dog caused death or serious injury to a person to have personal knowledge of that event, and a court is unlikely to imply such a requirement. Moreover, §822.002(a) expressly authorizes a county or city attorney or a peace officer to file the sworn complaint. Such individuals typically will not have personal knowledge of the facts underlying a dog attack, and yet the Legislature authorized those officers to file the complaints.

2. No. If a court finds that a dog caused death or serious bodily injury to a person, the fact that the dog’s attack was unprovoked is not an element a court must find before ordering a dog destroyed under §822.003.

3. No. The Legislature’s imposition of a 10-day deadline by which a court must conduct a hearing under §822.003 is not an unlawful statutory restriction on the court’s inherent authority to control its docket. The plain language of §822.003 requires that the case be called, and a hearing conducted within the 10-day statutory deadline, but it does not set a deadline by which the court must rule or otherwise limit the court’s authority to continue a hearing once called. No provision in chapter 822 deprives a court of jurisdiction if the hearing required by §822.003(a) is held outside of the 10-day period, but a party could seek mandamus to compel a hearing if a court does not hold a hearing within that period. Read Opinion.


Animal Control 3 – Dogs 0. This was a ruff decision for the dogs. There will be howling over this opinion. Expect a dogfight at the next legislative session.