January 26, 2018

Texas Court of Criminal Appeals

Lerma v. State

No. PD-1229-16                1/24/18


Does an officer unreasonably prolong a traffic stop when he asks a passenger to exit the vehicle to determine identity before conducting a computer check on the driver’s information or issuing a citation?


No. A traffic stop becomes unlawful if it is prolonged beyond the time reasonably necessary to complete the tasks associated with the traffic stop. An officer may request vehicle registration, proof of insurance, a driver’s license, or other information from the driver and run a computer check on that information. Questions posed to the driver and passengers unrelated to the reason for the stop are permitted, as long as the questioning does not unnecessarily extend the length of the stop. The traffic stop investigation is resolved once the computer check is completed and the officer has issued a citation, but there is no rule that an officer must immediately conduct a computer check on the driver’s information before questioning the passengers. A license check unduly prolongs the traffic stop only when the officer acted unreasonably under the circumstances. The traffic stop is not unreasonably prolonged when an officer asks a passenger to exit the vehicle and has reasonable suspicion to conduct a pat-down within the first five minutes of the traffic stop. Read opinion.


This is an important case for any prosecutor whose work might involve a traffic stop—which means all of us. The Court reconciles a number of its past cases with the most recent Supreme Court case on traffic-stop delay, Rodriguez v. United States, 135 S.Ct 1609 (2015). Most importantly, the Court refused to micro-manage the way officers handle traffic stops. This unanimous opinion becomes the definitive case for analyzing traffic stops and the issue of delay during traffic stops.

State v. Cortez

No. PD-0228-17                1/24/18


Does touching the fog line while driving justify a traffic stop for improperly driving on an improved shoulder?


No. A person is not “driving on the improved shoulder” until the vehicle crosses over the fog line. Momentarily touching the fog line, without any other indicator of criminal activity, is insufficient to justify a traffic stop. Transportation Code §545.058(a) also provides seven listed circumstances in which driving on the improved shoulder is permitted and would not be a reasonable basis for a traffic stop. Read opinion.

Concurrence (Newell, J.):

“The Court rightly determines that ‘touching the line’ does not constitute ‘driving on the improved shoulder.’ The Court recognizes that there is no need to send the case back a third time for the court of appeals to address whether any encroachment upon the improved shoulder in this case violated a traffic law. … Someday, perhaps soon, our cars will drive themselves. When that day comes, determining with molecular-level precision where a roadway ends and an improved shoulder begins may be necessary. But cars are still driven by people, and the Court focuses on what the statute focuses on, whether the driving at issue was necessary and safe.” Read opinion.

Dissent (Keller, P.J.):

“The Court gives three reasons for holding that the officer did not have a sufficient basis for the stop: (1) it is not clear that appellee’s vehicle touched the fog line, (2) touching the fog line does not constitute ‘driving on the improved shoulder,’ and (3) driving on the improved shoulder was lawful here to allow another vehicle to pass or for appellee’s vehicle to decelerate before making a right turn. The first reason, even if correct, does not support the Court’s resolution, the second reason is incorrect, and the third reason was not addressed by the court of appeals and has not been raised as a ground for discretionary review. The Court’s decision to rely on its third reason is especially troubling, because the State was not put on notice that it needed to brief the issue before this Court. Before deciding this third issue adversely to the State, the Court should have at least granted review of that issue on its own motion and ordered briefing.” Read opinion.

Dissent (Yeary, J.):

“I object to the misapplication of scarce judicial resources in this case. The Court should address the issue we granted review to resolve and then, if need be, remand the cause (once again) to the court of appeals to address any remaining, as-yet-unaddressed issues necessary to the ultimate resolution of the case.” Read opinion.


The dispute among the judges in this case is about the way the Court uses its discretionary review authority, not the ultimate holdings. The holding that touching the fog line does not establish the offense should not be much of a surprise.

Texas Courts of Appeals

Amberson v. State

No. 13-16-00306-CR        1/18/18


May an officer testify as a lay witness about pill identification based on drugs.com and the Drug Bible?


No. The information relied on for drug identification in drugs.com and the Drug Bible constitutes hearsay. An officer’s description of the steps taken to identify the pills is not proper lay witness testimony. Visual observation of the pills, comparison with the information on drugs.com and the Drug Bible, and reconciliation of the observations and the information is the province of an expert. In this case, the officer who testified also did not have the appropriate training to be considered an expert witness on drug identification. Read opinion.


This is an interesting case because the officer performed essentially the same analysis that would be performed in the lab—comparing the shape, color, and code on a pill to a reference. Could this be a situation where specialized training can create an expert rather than a science degree? Many labs will not conduct a chemical analysis of pills, even at the request of a prosecutor. The officer in this case arrived at this method because DPS would not conduct analysis of the pills absent a request from the district attorney.

Bates v. State

No. 07-16-00386-CR        1/18/18


Under Code of Criminal Procedure Art. 13.04, must an indictment allege that the offense was committed within 400 yards of the county line, rather than within the county?


No. Under Code of Criminal Procedure Art. 13.04, “[a]n offense committed on the boundaries of two or more counties, or within four hundred yards thereof, may be prosecuted and punished in any one of such counties.” Code of Criminal Procedure Art. 21.06 further provides that “[w]hen the offense may be prosecuted in either of two or more counties, the indictment may allege the offense to have been committed in the county where the same is prosecuted.” The indictment may allege that the offense occurred within the county and is not required to specify that it occurred within 400 yards of the county line. The jury charge may still state that the defendant should be found guilty if the jury determines that the offense was committed within 400 yards of the county line indicated in the indictment. Read opinion.


The court’s resolution of the venue issue is a straightforward application of the Code. If you prosecute a lot of cases around county lines, read this case and keep it handy.


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