January 31, 2020

Court of Criminal Appeals

Burg v. State

No. PD-0527-18           1/29/20


Can a defendant complain for the first time on appeal about an unauthorized driver’s license suspension if he did not object to the imposition of the suspension to the trial court?

Holding (Newell, J.):

No. A license suspension is not “punishment” because it is not incarceration, probation, a fine, or an enhancement, regardless of whether it is included in the sentence. Therefore, an unauthorized license suspension cannot be characterized as an “illegal sentence.” In this case, the court followed ordinary preservation of error requirements. Because the defendant had the opportunity to object and did not, he has not preserved his appellate claim for review. Read Opinion.

Concurring (Keasler, J. joined by Keller P.J., and Yeary, J.):

“I agree with the Court’s holding that, because the appellant in this case did not object when the trial judge purported to suspend his driver’s license, he has forfeited his ability to complain about that action on appeal. I even agree, for the most part, with the Court’s rationale in arriving at that conclusion. But I disagree with the Court’s gratuitous undermining of Marin. For that reason, I can only concur in the Court’s judgment.” Read Opinion.


This opinion will mainly interest appellate practitioners as it deals with preservation of error requirements.

Texas Courts of Appeals

Ovalle v. State

No. 05-19-00136-CR   1/22/20


Is the time payment fee in Local Gov’t Code §133.103 unconstitutional on its face?


Yes. Section 133.103(b) & (d) are facially unconstitutional because they violate separation of powers. Dallas’s Fifth Court of Appeals joins several other courts of appeals in reaching this holding. See Johnson v. State, 573 S.W.3d 328 (Tex. App. — Houston [14th Dist.] 2019, pet. filed); King v. State, No. 11-17-00179-CR (Tex. App. — Eastland July 11, 2019, no pet. h.) (mem. op.); and Simmons v. State, No. 10-18-00269-CR, 2019 WL 6464999, at *7 (Tex. App. — Waco Nov. 27, 2019, pet. filed). Read Opinion.


Shout-out to the court costs and fees warriors out there. This one goes to the defendant.

Porras v. State

No. 05-18-01108-CR   1/24/20


Does a court lose jurisdiction to adjudicate a defendant’s guilt when the adjudication hearing is held after the maximum allowable period of community provision has expired?


No. The trial court retained jurisdiction to hold the adjudication hearing and acted within its discretion. The court found nothing in CCP Arts. 42A.752, 42A.753, and 42A.757 that deprived a court of jurisdiction to revoke a defendant’s community supervision simply because the revocation hearing was held after the maximum allowable period of community supervision for the offense had expired. Moreover, according to other provisions in the Code of Criminal Procedure, a trial court retains jurisdiction to hold a hearing on a State’s motion to revoke, continue, or modify community supervision if, as in this case, the prosecutor filed a motion to revoke community supervision and a capias was issued for the defendant’s arrest before the expiration of the community supervision period. Read Opinion.


Here, the key facts were that the petition to adjudicate was filed within the period of community supervision and the warrant was issued during the period of community supervision. This was the second published criminal decision from the Dallas Court of Appeals this week—could it be a trend?

Harrison v. State

No. 14-18-00372-CR   1/28/20


Is a defendant entitled to a new plea hearing and trial after defense counsel failed to inform the defendant of a comment by the trial judge that, had the defendant known about it, would have prompted her to ask to change her plea, ask for a jury trial, and maintain her innocence?


Yes. Because the defendant demonstrated that but for her counsel’s errors, she would not have pleaded no contest to injury to a child and would have asked for a jury trial, the court concluded the proper remedy is to reverse the trial court’s judgment and remand the case for a new plea hearing and trial to give the defendant an opportunity to reject her plea agreement and opt for a jury trial.

Concurring (Jewell, J.):

“Today we reverse appellant’s judgment of conviction and remand for a new plea hearing and trial because appellant’s counsel’s ineffective assistance prejudiced her. I agree with that outcome, but I write separately to explain my reasoning. Although presented only as ineffective-assistance-of-counsel arguments, appellant’s first and second issues are based upon two related, but distinct Sixth Amendment violations shown on this record, namely deprivation of the right to effective assistance of counsel and of the right of personal autonomy over one’s defense. Here, both violations are related factually in the sense that the former begat the latter. But the standards for obtaining reversal based on each violation are different.” Read Opinion.


This opinion really opens a can of worms and should be reviewed by the Court of Criminal Appeals. The opinion in McCoy v. Louisiana, 138 S.Ct. 1500 (2018) was a very narrow expansion of the general rule that defendants determine the ends of the representation, but attorneys determine how those ends are met. Post-McCoy, the defendant chooses whether to plead guilty or not guilty, whether to try the case to a jury or the judge, whether to appeal, and whether to maintain his innocence even in the face of overwhelming evidence. Does this now mean that defense counsel have to keep stats on judges and present those to clients contemplating a plea? Must they poll their colleagues and present the results to their clients prior to a plea? That said, the trial judge’s comment specific to the defendant’s case does seem to be information the defendant would need for the plea to be voluntary. Except here, the remark was made after entry of the plea. Be wary of this case—it sidesteps the ordinary filters courts use to address situations of buyers remorse. Harrison may ultimately win a new trial, but it should not be due to the restructuring of the client/attorney continuum of responsibilities.

Lopez v. State

No-14-19-00380-CR & -00381-CR      1/28/20


Is a waiver of appeal valid when the State agrees to waive the right to a jury trial in exchange for the defendant’s waiver of his right to appeal?


Yes. The signed written plea document stated, “In exchange for the State giving up their right to a jury trial, I agree to waive my right of appeal which I may have.” The court stated that constituted recorded evidence that the defendant’s waiver of his right to appeal was bargained for. The State gave consideration for the waiver in the form of waiving its own right to a jury trial. Ex parte Broadway, 301 S.W.3d 694, 699 (Tex. Crim. App. 2009) compels the court to conclude the defendant’s waiver of his right to appeal is valid. Read Opinion.

Concurring (Spain, J.):

“In these appeals the court has given appellant the procedural due process and due course of law to which he is entitled, and it is now appropriate to involuntarily dismiss them. I do, however, disagree with the suggestion in footnote one of the court’s opinion that an appellant is not entitled to notice of an involuntary dismissal. We are required to give notice of involuntary dismissal based on want of jurisdiction in civil cases. Tex. R. App. P. 42.3(a). Presumably there are greater constitutional interests at stake in criminal cases—life and liberty—not merely property. See U.S. Const. amends. V, XIV, § 1 (due process); Tex. Const. art. I, § 19 (due course of law). I see no reason that a party in a criminal case should have less of a right to procedural due process and due course of law than a party in a civil case. I urge the Court of Criminal Appeals of Texas to amend Texas Rule of Appellate Procedure 42 and give a party in a criminal case the same due-process and due-course rights that are afforded to a party in a civil case.” Read Opinion.


The defendant’s challenge to the State’s motion to dismiss is interesting. Generally, the courts of appeals do notify criminal defendants of the potential of dismissal and give them the opportunity to respond or correct deficiencies.