July 3, 2015

Texas Court of Criminal Appeals

State v. Jackson

No. PD-0823-14                 7/1/15


Did police verification of defendant’s speeding sufficiently attenuate the taint of the illegal search that alerted them to the defendant’s conduct?


Yes. Independent verification of defendant’s speed by the officer who pulled him over served as an intervening circumstance between the inception of the illegal search and the discovery of the evidence in question. Due to the existence of an intervening circumstance, the court should focus on the conduct of police, whether they purposefully or flagrantly violated the defendant’s Fourth Amendment Rights. Read opinion.

Concurrence (Hervey, J.):

Judge Hervey wrote to explicitly outline why the suppression in this case would not serve the policy of the exclusionary rule. Read opinion.

Dissent (Meyers, J.):

Judge Meyers dissents because he believes the stop, even with the independent verification of speeding, was nothing but pretense and cannot be separated from the illegal GPS search. Read.


This case bears watching. The Court continues in its attempts to harmonize Article 38.23 and the federal exclusionary rule. This case should come in handy given increasing attempts by the legislative branch to “privatize” data held by third parties, thus creating the potential for more situations like that in the instant case where the police complied with the law at the time only to have the Supreme Court change after their arrest.

Robinson v. State

No. PD-0421-14                 7/1/15


What culpable mental state is required for a violation of failure to register as a sex offender under CCP Article 62.102 and to what elements of the offense does it apply? Do the trial courts findings of fact affect sufficiency of the evidence review on appeal?


Article 62.102 requires the culpable mental states of knowledge or recklessness to apply only to the duty-to-register element of the offense.  Trial court findings of fact do not affect appellate review of the sufficiency of the evidence. Read opinion.

Concurrence (Alcalá, J.):

Judge Alcalá agreed with the issues decided in the majority opinion, but wrote to support the idea that mental culpability should be applied to that latter portion of Article 61.012 that addresses a defendant’s failure to give timely notice of a change of address. Judge Alcala fears that without a culpable mental state, the statute would turn into a strict liability offense. Read.

Concurrence (Keller, P. J.):

Judge Keller wrote to clarify that if a defendant is unable to register due to the authorities refusing to accept a registration, he may be able to avoid criminal liability because the failure to act was involuntary. Read.


Presiding Judge Keller’s concurrence effectively answers Judge Alcalá’s fears. The Court’s culpable mental state holding may seem a little confusing, but it is consistent with opinions discussing similar “circumstances of conduct” offenses. The findings of fact holding matters most for appeals.

Stairhime v. State

PD-1071-14         7/1/15


Does a statement of “no objection” at the close of jury selection waive any appellate review of previously preserved voir dire error?


No.  A statement of “no objection” to the “seating of the jury” or “to the panel” would not be assumed to be a waiver of previously preserved voir dire error. Read opinion.


While the decision seems fair, it ignores the possibility that defense counsel was no longer worried about his voir dire questions once he saw the seated jury. After all, what the trial court did was afford trial counsel another opportunity to flesh out his complaint and demonstrate how it affected the seated jury: “Look, your honor, I ended up with one of those people you did not let me question regarding fairness.” The holding might make more sense had trial counsel gone to greater effort to make a record rather than asking three different questions to which the trial court sustained objections. But then, the trial court prompting trial counsel for an objection after seating the jury was the perfect opportunity to do that, wasn’t it?

Speights v. State

No. PD-0543-14                 7/1/15


Is the charge of indecency with a child by exposure necessarily subsumed within the offense of indecency by contact?


No. The court holds specifically that indecency by exposure and indecency by contact are separate offenses, each subject to punishment. In this case the evidence showed that defendant committed both offenses and thus is subject to punishment for each. Read opinion.


Lower courts continue to struggle with cases where defendants commit multiple offenses against the same victim in the same time frame. Here, the Court upholds convictions for indecency by contact and indecency by exposure in the same time frame where the record shows discrete acts of exposure and contact.

Salinas v. State

No. PD-0419-14                 7/1/15


To succeed on a facial challenge to a statute’s constitutionality, must a defendant also show whether that section of the statute is severable and how the statute operates in practice?


No and no. A defendant is not required to discuss the severability of an allegedly unconstitutional statute in a facial challenge. Additionally, in a facial challenge, the court only considers how the statute is written, not how it operates. Read opinion.

Peraza v. State

No. PD-0100-15 & PD-0101-15    7/1/15


Is a cost of court “Related to DNA Testing” under Article 102.020 of the Code of Criminal Procedure a facially unconstitutional tax?


No. The court rejects the test that any court costs must be necessary or incidental to the prosecution of the immediate defendant and instead finds the test to be whether such court costs are expended for any legitimate criminal justice purposes. Because both the Criminal Justice Planning Account and the highway fund, beneficiaries of the fee, fund multiple legitimate criminal justice purposes, the DNA Record Fee is not a facially unconstitutional tax. Read Opinion.


If you have followed the Court for the last several years, you know there has been much litigation about court costs and fees and a substantial number of facial challenges to statutes. The Salinas and Peraza opinions now merge those two trends—facial challenges to court costs. It will be interesting to see whether other cost provisions might be more vulnerable than the DNA cost.

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