Texas Court of Criminal Appeals
Parker v. State
No. PD-0388-21 7/27/22
Issue:
Does the language of Code of Criminal Procedure Article 18.01(b) permit anticipatory search warrants?
Holding:
Yes. The requirement that “probable cause does in fact exist” in Article 18.01(b) does not require a suspect’s present possession of contraband. The magistrate in this case had sufficient probable cause to sign a search warrant because: 1) Oregon police had identified the contents of two packages addressed to the defendant as containing psilocybin; 2) Oregon officers had coordinated with UPS and the San Marcos Police Department about package shipment and delivery; and 3) through this coordination, a San Marcos officer knew the package with psilocybin was in transit to the defendant’s address and would arrive on a particular day. Read opinion.
Concurrence (Yeary, J.):
“The Court today construes Article 18.01(b) of the Code of Criminal Procedure to permit so-called ‘anticipatory’ search warrants. … But as part of its analysis, the Court also seems to construe Article 18.01(c) to prohibit ‘anticipatory’ evidentiary search warrants conducted pursuant to Article 18.02(10). … Because I find the latter construction questionable and, in any event, utterly unnecessary, I only concur in the result the Court reaches.” Read opinion.
Commentary:
Probable cause to support a search warrant exists when, under the totality of the circumstances, there is a “fair probability that contraband or evidence of a crime will be found” at the location specified in the warrant affidavit. “Probable” and “probability” are key words here, reminding us that, when magistrates make probable cause determinations, they are assessing facts and circumstances that indicate that something is likely to be found, not certain to be there.
It is also worth noting that the majority opinion asserts as dicta that Article 18.01(c)(3) imposes a “present possession” requirement for “mere evidentiary” search warrants issued under Article 18.02(a)(10). Though this case involved a narcotics search warrant issued under Article 18.02(a)(7), be cognizant of these statements in the majority opinion if you are seeking an anticipatory search warrant for “mere evidence,” under Article 18.02(a)(10).
Jefferson v. State
No. PD-0677-21 7/27/22
Issue:
Does adding a count constitute adding an additional offense to an indictment?
Holding:
Yes. When the State amends an indictment to add counts, it is adding allegations of separate offenses to the indictment under Code of Criminal Procedure Article 28.10. The Court reversed the case for the court of appeals to decide whether the defendant’s counsel was ineffective for failing to object to the State amending the indictment to add two counts. Read opinion.
Concurrence (Yeary, J.):
The defendant “should be able to complain—even for the first time on appeal—that the addition of new offenses to his indictment violated his right to a grand jury screening of the charges against him. But the failure to object is a forfeiture, not a waiver. The court of appeals seems to have confused the two. And to the extent that Article 28.10(c) would render [the defendant’s] claim subject to forfeiture, as opposed to waiver, it is at least arguably unconstitutional. Had [the defendant] actually re-raised this more-jurisprudentially-significant issue on discretionary review, this might very well have been the case in which to address it.” Read opinion.
Commentary:
A “count” is the statutory method of alleging an offense in an indictment. Some counties (e.g., Harris County) create separate cases and use separate indictments to allege every individual offense charged; other counties use multiple counts to charge multiple offenses in the same indictment. If your county falls into the latter category, keep this opinion in mind if you seek to add a new charge and recall that you cannot do so by simply “amending” your indictment to incorporate the new offense. Rather, you must add the new charge via a new, separate indictment for that charge, or by a new indictment that includes an additional count pertaining to the new offense. Note that a new indictment in either of these scenarios must be issued by a grand jury.
Texas Courts of Appeals
Blankenship v. State
No. 02-20-00157-CR 7/14/22
Issue:
Do soda cans, glass bottles, and plywood qualify as “chemical waste” to justify a Class A charge of unlawful burning under Health & Safety Code §382.018, Texas Administrative Code §111.219(7), and Water Code §§7.177 and 7.87(b)(3)?
Holding:
No. The Court concluded that the State had not proved that the process of creating soda cans and glass bottles involved a “toxic factory process,” and even though plywood is considered “treated lumber” that is prohibited to burn, it does not qualify as chemical waste under the burning statute justifying a Class A conviction. Therefore, the Court remanded the case to the trial court to reflect a conviction for Class C unlawful burning and conduct a new punishment hearing. Read opinion.
Dissent (Walker, J.):
“[T]he TCEQ regulations cited by the majority in support of its definition actually show that the regulatory scheme does not contemplate that plywood constitutes ‘treated lumber’ simply because it has undergone a gluing process.… Thus, because ‘treated lumber’ has acquired a technical meaning as lumber treated with chemicals for preservative or fire-retardant purposes and there is no evidence in the record that Blankenship’s plywood was treated in this manner, and because the majority’s holding would lead to absurd results, I respectfully dissent.” Read opinion.
Commentary:
If you’ve been burning for a case pertaining to the legal sufficiency of the evidence to support a conviction for unlawful burning, this is the opinion for you. As the appellate court here explains, the statutory scheme for the offense of unlawful burning is disorganized, spread across the Health and Safety Code, the Water Code, and the Administrative Code. Be sure to carefully reference all of these sources if you are prosecuting a burning-related offense, so that you can ensure that the charging instrument, evidentiary presentation, and jury charge contain all essential facts required to support a conviction for that particular offense.
McCreary v. State
No. 02-21-00114-CR 7/21/22
Issue:
Does the word “material” when used in Penal Code §37.08 (false statement to a peace officer) track either the definition of “material” used in Brady or Penal Code Chapter 37 (perjury)?
Holding:
No. Under the plain language of §37.08, whether a statement is “material to a criminal investigation” applies to any aspect of the investigation, not just the outcome. “Nothing in the plain language of Section 37.08 indicates that the investigation’s outcome, or ultimate result, determines whether a false statement is ‘material.’” Read opinion.
Commentary:
The appellate court here declined the defendant’s and the State’s suggested, more technical definitions of “material” and opted, instead, to hold more broadly that the jury was free to interpret the meaning of “material” in this context using any common dictionary definition—e.g., relevant, pertinent, or essential. In doing so, this opinion adheres to the well-trod rule that, unless the Legislature has specifically defined a term or phrase, courts will construe the word according to the rules of common usage. Moreover, this opinion also demonstrates why this less-restrictive approach is important when sufficiency of the evidence to support a conviction is at issue—namely, because a more expansive meaning of a term or phrase might allow for a more expansive array of evidence to establish a necessary fact or element.
State v. Villaloboz
No. 08-21-00037-CR 7/22/22
Issue:
For timely indictment purposes, does Code of Criminal Procedure Article 32.01 allow an information instead of an indictment to be filed in felony cases?
Holding:
No. Filing an information in a felony case does not relieve the State of its obligation to secure an indictment under Article 32.01. “Because we conclude that the State has failed to show that article 32.01 allows for an information to substitute for an indictment when a defendant stands accused of a felony, or that good cause was shown for the complained-of indictment delay, we affirm the trial court’s order granting Villaloboz’s motion to dismiss for denial of speedy indictment.” Read opinion.
Commentary:
Under Article 1.141 of the Code of Criminal Procedure, a defendant charged with a non-capital felony offense may waive his right to be accused of that crime via an indictment, at which point a felony information will suffice to confer jurisdiction upon the district court. However, if the defendant does not make that affirmative waiver (or if the record does not show the waiver), the terms of Article 32.01 are mandatory, and a felony information cannot supplant an indictment and forestall the dismissal (without prejudice) of the prosecution, unless the State shows good cause for the delay. Note that “good cause” in this context is assessed under the same factors that are used in a speedy-trial claim (length of the delay, State’s reason for delay, whether delay was due to a lack of diligence by the State, and whether the delay harmed the defendant).