June 13, 2014



Texas Court of Criminal Appeals

Garza v. State

No. PD-1596-12                     6/11/14


If a juvenile fails to object at trial to imposition of a life-without-parole sentence, has he waived his argument on appeal that the sentence violated the Eighth Amendment as defined by the U.S. Supreme Court in Miller v. Alabama?


No. Citing its recent decision in Ex parte Maxwell, 424 S.W.3d 66 (Tex. Crim. App. 2014), the Court concluded that because it found that Miller applies retroactively, by necessary implication, an Eighth Amendment claim under Miller cannot be waived by failure to object. Read the opinion

Concurrence (Price, J.):

While the Court did not expressly address the question in Maxwell of whether a Miller claim is subject to forfeiture by inaction, the reasons it gave for retroactivity nonetheless amply justify placing a violation of Miller at least within the class of claims that probably cannot even be affirmatively waived. Read the concurrence.

Concurrence (Cochran, J.):

The conclusion that failure to object does not waive the Eighth Amendment argument is similar to the way courts have treated significant U.S. Supreme Court decisions announcing new constitutional rules, such as Furman v. Georgia and Griffith v. Kentucky. Read the concurrence.

Concurrence (Alcala, J.):

Because this case is on direct appeal (unlike Maxwell, which was a habeas proceeding), the Court should have simply applied the rule that a failure to object does not forfeit a complaint

when the constitutional rule at issue had not been established at the time of the defendant’s trial. Read the concurrence.

Dissent (Keller, P.J.):

The petition should be dismissed as improvidently granted because the record did not establish (by judicial finding or any other means) that the defendant was a juvenile. Additionally, the Court’s holding that a rule of law can be established by the Court’s complete failure to address an issue in a prior case is not correct. Even if a rule of law could be established in such a manner, the Court would be constrained to follow it in a subsequent case. Read the dissent.


The bottom line for this case is that a juvenile defendant does not need to object at trial to complain on appeal that he should not have been sentenced to life in prison without the possibility of parole. That holding can hardly be surprising, but the court certainly did take a messy route in getting there. The holding should also be unnecessary in most cases because the Legislature has now amended the controlling statute to prevent life without parole for juvenile offenders (which—in Supreme Court parlance—is anyone under the age of 18 when he committed the offense).

Matthews v. State

No. PD-1341-13                     6/11/14


1)      Did an anonymous tip that alleged the defendant was selling crack out of van but also named and described the defendant, the vehicle the defendant was in, and the location of the vehicle create reasonable suspicion to detain the defendant long enough to conduct a K-9 search of the vehicle for drugs?

2)      Did the defendant have standing to challenge the search of the van, which was borrowed and which he abandoned when he fled on foot during the detention?


1)      The court did not answer this question specifically, because it said the tip itself was not the sole basis of the reasonable suspicion. The location was also a high-crime area and the defendant behaved suspiciously when encountered. The fact that the tip was accurate as to the name of the defendant, description of the defendant, description of the vehicle, and location of the vehicle established reasonable suspicion when combined with the other two factors.

2)      No. The driver had a reasonable expectation of privacy in the borrowed vehicle, but he abandoned that expectation when he abandoned the vehicle itself by fleeing.

Read the opinion.


The tip in this case was not really “anonymous” because the officers knew the telephone number and general identity of the tipster. The tipster even showed up at the scene when the defendant was finally apprehended. Nevertheless, there was more than enough here for the officers to conduct a narcotics investigation and detain the defendant, and—when the defendant ran—the officers had probable cause to arrest him for committing the offense of evading detention. This is not a surprising decision, but it should be helpful in cases in which a citizen has called for the police. The standing issue will be helpful only if a defendant has run away from a vehicle that was not really his in the first place.




Texas Court of Appeals

Douds v. State (en banc, on rehearing)

No. 14-12-00642-CR              6/5/14


When an alcohol-related crash resulted in a victim being hospitalized, did the time necessary to investigate the crash, coupled with the dissipation of alcohol in the defendant’s blood stream, provide sufficient exigent circumstances to justify a blood draw under §724.012(b)(1)(C), Transportation Code, without a warrant?


No. The focus of the exigent circumstances analysis in both Missouri v. McNeely, 133 S.Ct. 1552 (2013)and Schmerber v. California, 384 U.S. 757 (1966) is whether the delay that would be caused by obtaining a warrant, not investigating a crash, would threaten the destruction of the evidence. In this case, there are no facts on the record indicating that the delay in investigating the crash led to a delay in obtaining a warrant; in fact, the record is silent as to why the officer did not obtain a warrant. Read the opinion.

Concurrence (McCally, J.):

The record in this case indicates that the officer had wrapped up the investigation of the crash in less than an hour, but then delayed more than an hour afterward before having the defendant’s blood drawn. That evidence alone demonstrates there were no exigent circumstances in the case. Read the concurrence.

Dissent (Boyce, J.):

The record supports the trial court’s determination that the officer considered whether the delay caused by the investigation made any further delay in obtaining a warrant impracticable. Accordingly, the facts of this case are essentially identical to the facts in Schmerber, where the U.S. Supreme Court found exigent circumstances justified a warrantless blood draw. Read the dissent.


This case is interesting because it was decided by all nine justices on the Fourteenth Court of Appeals (en banc) and because the vote was split 5–4. But the issue of most importance in this case—or at least to prosecutors—is probably going to be decided by the Court of Criminal Appeals in another case. The majority opinion is exhaustive in its reasoning and very well-researched. It will be difficult to overturn on petition for discretionary review. But it is not unassailable. Near the end of the majority’s opinion, Justice Busby states, “The State’s evidence does not support an objectively reasonable conclusion that obtaining a warrant was impractical.” But much of the support for that conclusion is based upon the officer’s subjective testimony (or lack thereof). The split of the justices in this en banc decision would seem to make this case ripe for a decision from the Court of Criminal Appeals. But do not be surprised if this case is instead remanded to the court of appeals to be decided in light of the court’s ultimate application of McNeely and Schmerber to mandatory blood draw or implied consent situations.

Schuster v. State

No. 01-13-00039-CR              6/5/14


After the Court of Criminal Appeals found the statute upon which the defendant’s conviction was based to be facially unconstitutional (see Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013)), was the defendant barred from raising the constitutionality of the statute on appeal because he did not preserve it at trial?


No. The requirement that a defendant preserve an argument against the constitutionality of a statute is based on a presumption that a statute is valid until determined otherwise. That presumption cannot apply after the Court of Criminal Appeals has deemed a statute facially unconstitutional. Read the opinion.


This decision is arguably a logical extension of the decision of the Court of Criminal Appeals in Ex parte Lo, as well as the more recent per curiam decision of the court in Ex parte Chance decided on May 7, 2014 (although there was no real holding in that latter case, notwithstanding the forcefulness of Judge Cochran’s concurring opinion). 

In re: the State of Texas

No. 08-13-00195-CR              6/6/14


Was the State entitled to a writ of mandamus against a trial judge who disqualified the entire district attorney’s office from prosecuting an “unspecified criminal offense committed against a child” because an assistant district attorney had witnessed the Children’s Advocacy Center’s interview of the victim?


Yes. There are only two grounds for the disqualification of a prosecutor set out in Art. 2.08 of the Code of Criminal Procedure: 1) when the prosecutor is of counsel adverse to the State, and 2) when the prosecutor is the subject of a criminal investigation. Neither of those applied here, and a trial court may not force a prosecutor to recuse herself, much less disqualify an entire office. Read the opinion.


So a trial cannot disqualify an ENTIRE district attorney’s office because ONE of the assistant district attorneys MAY have become a fact witness. Good to know. Good grief.

Broussard v. State

No. 14-13-00406-CR              6/5/14


When police saw the defendant smoking a cigar and smelled marijuana, and when that probable cause led to a search that turned up cocaine, should the cocaine have been suppressed when the defendant presented evidence that he was actually smoking a “Kush” cigar that did not actually smell like marijuana?


No. Even if the defense could prove conclusively that material in the cigar did not smell like marijuana, that does not eliminate the possibility that the officers smelled marijuana emanating from the vehicle. Read the opinion.


This case highlights the fact that, when reviewing an officer’s search or seizure, the courts view the officer’s objectively reasonable belief (rising to the level of reasonable suspicion or probable cause). Courts are not reviewing whether the officer may have in fact been mistaken. There was no evidence in this case that the officers did not reasonably smell marijuana.

Ex parte Bowman

No. 01-13-01045-CR              6/5/14


1)      Was the State required to plead laches at a habeas hearing to preserve that issue for appeal?

2)      Was the defendant entitled to habeas relief on an ineffective assistance theory because his attorney had not presented payroll records at trial that showed the arresting officer’s 476 DWI arrests in the past year earned him $82,032 in overtime pay for testifying at the subsequent trials stemming from those arrests?


1)      Yes. The State did not present any authority to support the idea that it can raise an issue on appeal that was not raised in the trial court, and even though the Court of Criminal Appeals may be currently considering that same issue, it has not yet been decided.

2)      Yes. An investigation that did not include obtaining the payroll records, which were available and readily detailed the vast extent of Lindsey’s overtime pay, does not reflect reasonable professional judgment.

Read the opinion.


I have always thought that the general rule is that the non-appealing party (the appellee)—in this case, the State—does not need to preserve error to be able to raise it on appeal. The general rule is also that a trial court’s ruling can be upheld for any reason applicable to the case, even if the trial court gave a wrong or insufficient reason at trial. Furthermore, it does not seem right that the defense should be permitted to impeach an officer with specific instances of alleged misconduct (as set forth in T.R. Evid. 608(b)). Therefore, a defense lawyer cannot be ineffective for failing to do something the rules of evidence prevent. It seems like the court of appeals got this decision wrong on all fronts. We shall see if the Court of Criminal Appeals reviews the case on petition for discretionary review.




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