June 16, 2017

Texas Court of Criminal Appeals

Queeman v. State

No. PD-0215-16                6/14/17


Does the failure to control speed and the failure to maintain a proper distance between vehicles prove a gross deviation from the standard of care that an ordinary person would exercise under the circumstances?


No. Although the evidence was sufficient to prove that the defendant was speeding, it was not sufficient to prove that he was excessively speeding, and the State presented no evidence about the reason or length of time for which he was inattentive. There is no evidence of a failure to perceive a substantial and unjustifiable risk caused by the defendant’s actions, and no reasonable jury could have found that his actions constituted a gross deviation from the standard of care of an ordinary person under the circumstances. Read opinion.


This decision was unanimous, and it is now one of the leading decisions from the Court on the sufficiency of the evidence to support criminally negligent homicide in a vehicular accident. The Court discusses at length two of its more recent decisions where the evidence was found to be sufficient—Montgomery v. State and Tello v. State. If you are planning on pursuing a criminally negligent homicide prosecution, study the facts of this case very carefully to determine if you can succeed.

Ritz v. State

No. PD-1661-15                6/14/17


Can a conviction for continuous trafficking of a person be based on actions that do not involve “organized crime, prostitution, or forced labor”?


The Court dismissed the petition for discretionary review as improvidently granted, and the Third Court of Appeals’ opinion upholding the conviction stands. Read opinion.

Concurrence (Newell, J.):

Although purporting to challenge the sufficiency of the evidence, the defendant’s appeal is actually an overbreadth or vagueness challenge in disguise. If the Court would like to address these issues, it should wait until a petition is made that properly challenges the constitutionality of the statute. Read opinion.

Dissent (Keller, P.J.):

The defendant’s conviction was based on his actions of driving the underage victim to his home where they engaged in sexual conduct. Judge Keller would overrule the lower court and hold that this variant of the offense of trafficking of persons occurs only when the person who trafficks the child is a different person from the one who commits a sexual offense against the child. Read opinion.


The evidence in this case met the language of the statute: On numerous occasions occurring for more than 30 days, the defendant drove the victim 20 to 25 miles to his home so he could have sex with her. As the defendant has claimed, the Legislature may not have intended this fact situation to constitute the offense of continuous trafficking, and the Legislature may not have intended this defendant to get life in prison (which he got), but over the past few years, the Legislature has been very focused on the problem of human trafficking. It is doubtful a case like this will cause the Legislature to make any changes to the statute. At least in the Austin Court of Appeals district, if not beyond, this case provides a tool for prosecutors to obtain a significant punishment for a series of these offenses. It is not clear among this division of the current judges on the Court of Criminal Appeals if there are enough votes to construe the statute differently.

Texas Courts of Appeals

Hillman v. Nueces County

No. 13-16-00012-CV        6/8/17


May a prosecutor be fired for disclosing Brady/Michael Morton material against the wishes of his supervisor?


Yes. The cause of action for wrongful termination available under Sabine Pilot v. Hauck, 687 S.W.2d 733 (Tex. 1985), does not apply to government employers. Sovereign immunity can be waived only by “clear and unambiguous” statutory language, so a governmental entity retains its sovereign immunity even if an employee claims he was fired for failure to commit an illegal act. Read opinion.


Wow. This decision appears to be a completely correct application of sovereign immunity law. But it presents a prosecutor with a devastating choice: Turn over exculpatory evidence against the wishes of your supervisor and be fired, or do not turn over exculpatory evidence and be subject to the suspension of your license to practice law (under Schultz v. Commission for Lawyer Discipline, decided by the Board of Disciplinary Appeals in December 2015). Now there is certainly more to the facts of this particular case than is apparent from this opinion, but the legal dispute is quite important. The Legislature might want to consider amending the Michael Morton Act to allow a suit for wrongful termination under these circumstances. In the meantime, we will see if the Texas Supreme Court wishes to review this decision.

In re Bell

No. 01-17-00373-CR        6/13/17


Does a trial court have jurisdiction to issue an alias capias and set no bail after the reinstatement of a conviction by the Court of Criminal Appeals?


Yes. Under Code of Criminal Procedure Art. 44.04, the trial court may alter bail while an appeal is pending. Furthermore, a defendant who is appealing a conviction for felony aggravated robbery may not be released on bail pending appeal. The trial court was therefore required to place the defendant into custody immediately after the Court of Criminal Appeals reinstated the conviction. Read opinion.


This should be a very helpful decision for appellate prosecutors. If you win a case before the Court of Criminal Appeals after the defendant has been released on bail pursuant to a reversal by the court of appeals, the defendant can again by taken into custody—assuming the facts of a particular case support that.

Gonzalez v. State

No. 08-14-00175-CR        6/7/17


Does a law enforcement officer’s authority to investigate car crashes provide an independent basis to support an investigative detention?


Yes. Peace officers have a duty to investigate the scene of a crash to determine whether anyone was injured and the extent of property damage. This duty provides an independent basis to support the legality of an investigative detention without reasonable suspicion. Additional information obtained during the course of the investigation may authorize further detention. Read opinion.

See also Gonzalez v. State, No. 08-14-00203, issued by the court on the same day with the same holding. Read opinion.


This is a wonderful decision. The court initially finds that the officer had reasonable suspicion to believe the defendant was driving, even though the officer did not actually see the defendant driving—and that is certainly helpful. But then the court also holds there was an independent basis for the officer’s detention of the defendant—his duty to investigate a car crash. The decision also includes a good application of the “suspicious place” exception, allowing a warrantless arrest for an offense under Art. 14.03(a)(1) of the Code of Criminal Procedure. If you are prosecuting this type of DWI case, show this decision to the trial judge.

Fraser v. State

No. 07-15-00267-CR        6/9/17


Can reckless or criminally negligent injury to a child or child endangerment serve as the qualifying precedent felony for a felony-murder conviction?


No. Allowing a felony-murder conviction to be based on reckless or criminally negligent acts that caused the death of a child would circumvent the exclusion of manslaughter as a qualifying precedent felony. Because the legislature specifically excluded conduct that would be classified as manslaughter, the act “clearly dangerous to human life” cannot be based on reckless or criminally negligent conduct. Read Opinion.


This is a very thorough decision. It emphasizes once again that, if injury to a child is alleged as the predicate felony for felony murder, make sure it has been charged as intentional or knowing injury to a child.

Williams v. State

No. 01-16-00781-CR        6/13/17


Does failure to offer testimony about a defendant’s difficult childhood in foster care as mitigating evidence for punishment constitute ineffective assistance of counsel?  


No. The defendant testified about her health problems and change in life circumstances during the punishment phase of trial. She was given an opportunity to speak to the court and said she had nothing else to add. Her attorney’s decision to not introduce additional evidence was not “so outrageous that no competent attorney would have engaged in it.” There is also no evidence that the outcome would have been different if the defense attorney had chosen to introduce testimony about the defendant’s childhood. Read opinion.

Dissent (Jennings, J.):

“The fact that [the] appellant was raised in foster care and suffered from the traumatic consequences associated with it, constitutes critical evidence supporting mitigation of her punishment. There is no reasonable sound trial strategy, regardless of any possible subjective reason of trial counsel, in not bringing such consequential evidence to the trial court’s attention during the punishment phase of [the] appellant’s adjudication hearing. … Thus, the record presented demonstrates that trial counsel’s performance, as a matter of law, fell below an objective standard of reasonableness.” Read opinion.


This decision is a straightforward application of the law of ineffective assistance of counsel based upon an alleged failure to present mitigating evidence. This particular case is made unique by the policy arguments raised by the dissenting opinion. We shall see if the Court of Criminal Appeals wants to review this decision.


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