January 29, 2016

Court of Criminal Appeals

Buntion v. State

No. AP-76,769   1/27/16


Should the district attorney have been disqualified in a death penalty case for the murder of a police officer because she was previously a police officer and made an incorrect legal statement to the media?


No. The defendant challenged multiple aspects of the punishment retrial including voir dire, a member of the jury, denial of his motion to change venue, denial of his motions to recuse or remove the Harris County District Attorney’s Office from the case, denial of his motion to include life without parole as a sentencing option, and sufficiency of the evidence against him. The court overruled each of the 27 challenges and affirmed the death sentence. Read.

Concurrence (Hervey, J.):

Judge Hervey disagrees with Judge Alcala about the need to address the capital murder punishment scheme because of the prohibition on ex post facto laws and the required role of the jury in death penalty cases. Read.

Concurrence (Alcala, J.):

Judge Alcala writes to express her belief that an inequality exists in the current punishment system for capital murder due to the fact that defendants whose crimes were committed prior to September 1, 1991, may not agree to a life-without-parole punishment option. Read.


This is a retrial of a bad murder. It will be useful if you are fighting attempts to disqualify the elected district attorney, fighting a change of venue, or attempting to prove future dangerousness on retrial.


Griffin v. State

No. AP-76,834   1/27/16


Was the evidence sufficient to prove murder in the course of kidnapping?


No. The record did not support the offense of capital murder because there is not enough evidence to show that the murder in this case was committed in the course of committing or attempting to commit a specific felony—here, kidnapping. While the defendant committed a felony against the victim’s son, “a felony committed as an afterthought and unrelated to the murder is not sufficient to prove capital murder under Section 19.03(a)(2).” The judgment was reformed to murder and a new punishment hearing ordered. Read.

Dissent (Yeary, J.):

Judge Yeary finds the evidence sufficient to support a conviction for capital murder and would affirm the trial court’s judgment in both the guilt and punishment phase. Read.


A tough case. The defendant entered the victim’s home and murdered her. Her son recognized him, and the defendant assaulted him, knocked him out, and moved him inside the house. The majority analogized it to the line of authorities where the aggravating felony committed as an “afterthought” is insufficient to sustain the capital conviction. The Texas capital punishment system works very well for the most part, but by relying on predicate felonies to narrow the class of capital crimes it sometimes means heinous murders are not punishable as capital.

Ex parte Cox

No. WR-42,794-05            1/27/15


What is the appropriate remedy when only part of a plea bargain is later invalidated?


Because the plea in this case was part of a “package deal,” and the terms related to the invalided Count II became unenforceable, it changed the consideration and voluntariness of the entire plea. The defendant should be allowed to withdraw his plea and both parties returned to their original positions. Read.

Concurrence (Keller, P.J.):

Presiding Judge Keller concurred in the judgment and offered a definition of “package deal” for pleas. She also believed the results of an invalid plea should depend on whether the plea was voluntary. Read.


The concurrence offers a good outline of how to approach post-conviction messes like this one.

Ex parte Gomez-Reyes

No. WR-84,210-01            1/27/16


Is the defendant entitled to a certified translator for a memorandum attached to his application for habeas corpus?

Holding (per curiam):

Yes, the Court decided to hold the application in abeyance until the trial court could obtain a certified, translated copy of the defendant’s attached memorandum. Read.

Dissent (Keller, P.J.):

Presiding Judge Keller does not agree that the Court has the authority to order a trial court to produce a certified, translated copy of the defendant’s application and memorandum, because after conviction, the burden of proof shifts to the defendant. Read.


This is an unusual writ remand that bears watching. Many of the documents submitted by writ applicants are obscure, written in “gobbledygook,” or even in foreign tongues. Must a trial court obtain a translator for everything? The dissent indicates that the document in question is otherwise presented in the writ in English.

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