July 28, 2017

Texas Courts of Appeals

Gamero v. State

No. 08-15-00280-CR        7/19/17


May an officer search a car under the automobile exception to the warrant requirement if other officers had probable cause to believe the car contained drugs but the car was moved to the police impound lot prior to the search?


Yes. Under the automobile exception, law enforcement officers may conduct a warrantless search of a car if there is probable cause to believe that the car contains contraband. The officer conducting the actual search of the car could rely on the collective knowledge of the other officers who discovered the probable cause to search the car. The fact that a car is impounded at the time that probable cause develops does not inhibit an officer’s right to conduct the warrantless search. In this case, officers had probable cause that drugs were inside the car based on a drug-detection dog’s alert. A canine sniff by a drug-dog is not a 4th Amendment search as long as the officer and the dog have a right to be where they are at the time of the sniff. Read opinion.


This is a straightforward application of the “collective knowledge” rule and the automobile exception.

Garcia v. State

No. 14-16-00242-CR        7/20/17


Is the State’s failure to elect which alleged incident of sexual assault to submit to the jury reversible error?


Yes. The election rule ensures a unanimous verdict as to one specific incident that constitutes the charged offense. It also prevents the risk that the jury might convict based on the cumulative crimes alleged rather than because one crime was proved beyond a reasonable doubt. When the State presents some evidence of at least two separate incidents of sexual assault, it must elect at the end of its case-in-chief which incident it will submit to the jury. Failure to do so is harmful error requiring reversal. Read opinion.


Here, the Court determined that there was evidence of two distinct sexual assaults on distinct dates by penetration, one in the bathroom and another in the bedroom. The State’s evidence of one of the instances was contradictory, and the trial court denied the defendant’s request for election. The lesson here is that weakness of the State’s evidence regarding a prosecutable act does not release it from the obligation to elect a prosecutable act on the defendant’s request when there are multiple prosecutable acts that fit within the offense alleged in the indictment. This 30-year-old offense must be tried again. The court also conducted a speedy trial analysis that will be useful in situations where the defendant was a fugitive from justice during the period of delay.


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