June 2, 2017

Texas Courts of Appeals

Lewis v. State

No. 08-15-00015-CR         5/26/17


Is criminal trespass a lesser-included offense of burglary of a building with intent to commit theft?


Sometimes. The elements of criminal trespass require the State to prove that the defendant’s “entire body” entered the property in question, while the elements of burglary require, at minimum, only a partial intrusion of the property. Because the “entry” required by criminal trespass is greater than that required by burglary, criminal trespass will generally not be considered a lesser-included offense of burglary unless the indictment for burglary alleges the defendant’s full-body entry into the building. Read opinion.


I do not know about you, but I am not aware of ANY burglary indictments, in which the State has alleged that the defendant made a “full-body” entry into a building or habitation.  This is a distinction that a judge might find difficult to believe, so show your judge this decision, as well as Meru v. State, upon which the appeals court relies.  This decision is made under the first prong of the test for charging the jury on a lesser-included offense, so it is important.  If—in a particular burglary prosecution—you want the jury to be able to consider the lesser offense of criminal trespass, you will need to have pleaded that the defendant made a “full-body” entry into the building or habitation.

Traylor v. State

No. 13-13-00371-CR         5/25/17


May a jury’s post-deliberation communication amount to an acquittal for double jeopardy purposes for the charged offense although a mistrial was declared due to deadlock on a lesser-included offense?


Yes. The jury foreperson communicated to the judge that the jury was unanimous against guilt on the charged offense but deadlocked on the lesser-included offense. After additional hours of deliberation, the judge questioned the foreperson and confirmed that the jury was still deadlocked on the lesser-included offense. This communication is final enough to amount to an informal verdict of acquittal, and the defendant should not have been retried on the charged offense. However, the State is free to retry on the lesser-included offense. Read opinion.


This decision is a direct application of the United States Supreme Court’s 2012 decision in Blueford v. Arkansas.  The court of appeals has directly distinguished this case from Blueford based upon additional communication that the jury foreman made to the trial judge.  It is not at all clear that this communication was a final determination of an acquittal of the greater charged offense.  But even if the court of appeals got the legal analysis entirely correct in this case, the Court of Criminal Appeals will want to review this decision because it is a double jeopardy holding that would be important to the entire state.

Harris v. State

No. 07-16-00435-CR         5/30/17


Does the corpus delicti rule require independent evidence that alone proves the crime’s commission?


No. For the rule to be satisfied, there must be only some evidence rendering the corpus delicti more probable than it would be without the evidence. As long as there is some corroboration of the extrajudicial statement, the statement itself may be used in connection with the corroborating facts and circumstances to aid the proof of the corpus delicti. Where the defendant was charged with possession of a firearm by a felon and the only evidence of his 2009 release from prison was his own extrajudicial statement, evidence that he was convicted and given a seven-year sentence in 2003 was sufficient corroborating evidence to satisfy the rule. Read opinion.

Concurrence (Campbell, J.):

The court need not have reached the issue of whether the corpus delicti rule was satisfied because the State’s case did not rely at all on any extrajudicial “confession” by the defendant. The defendant’s stipulation to the felony conviction and the officer’s testimony at trial proved that the defendant had previously been convicted of a felony and that the arresting officer found a firearm in the defendant’s car. “There was no danger here of a conviction based solely on [the defendant’s] false confession to a crime that never occurred,” the concurrence reads. Read opinion.


It seems that the concurring opinion has the better argument in this case.  Regardless, it is clear that the defendant was properly convicted of being a felon in possession of a firearm.

In Re: Paxton, Jr.

No. 05-17-00507-CV through -00509-CV 5/30/17


May a judge continue to preside over a case under the original docket number, without the consent of the defendant, after ordering a change of venue?


No. When a court signs an order changing venue, jurisdiction immediately and automatically vests in the transferee court. A district judge may sit outside of his or her county seat only with express statutory authority. The sole authority is in CCP Art. 31.09, which allows a judge to maintain a case on his or her docket following a transfer of venue only with the written consent of the prosecuting attorney, the defense attorney, and the defendant. Any orders or directives issued by the original court following a transfer are void absent effective application of CCP Art. 31.09. Read opinion.


This appears to be a correct application of Article 31.09 and a correct application of mandamus law.  Because this is a mandamus action, the only remedy that the judge/respondent or the State has is to file—in the Court of Criminal Appeals—another application for a writ of mandamus against the court of appeals to challenge the court’s refusal to allow the Collin County judge to continue as the presiding judge of the case.  Regardless of whether the Court of Criminal Appeals reviews this holding, owing to the high-profile nature of this case and the principals involved, don’t be surprised to see more appellate court decisions regarding this case, even before the case goes to trial.

Texas Attorney General Opinions

No. KP-0150       5/31/17


Are municipal courts required to report juvenile convictions for drug paraphernalia offenses to the Texas Department of Public Safety?


No. A municipal court has jurisdiction over juveniles only for criminal offenses punishable by fine only, such as a class C misdemeanor for possession of drug paraphernalia. The Transportation Code requires courts to report to DPS drug-related convictions affecting a person’s driver’s license. However, conviction for this offense does not result in suspension or denial of a driver’s license, and municipal courts therefore have no duty to report it. Read opinion.


This is a pretty thorough opinion.  A footnote even points out that, if a juvenile fails to obey an order of a municipal court, the court may hold the juvenile in contempt and order DPS to suspend the juvenile’s driver’s license.  But the court would report the contempt order, not the underlying offense, to DPS.


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