June 27, 2014



U.S. Supreme Court

Riley v. California

No. 13-132                  6/25/14


May the police, without a warrant, search digital information on a cell phone seized from an individual who has been arrested?


No, not unless the facts create an exception to the warrant requirement, such as exigent circumstances. The sheer volume and diversity of information that is stored on a cell phone makes searching one incident to arrest analogous to searching a giant trunk the arrestee is towing and arguably more invasive than searching the arrestee’s home, both of which would also require a warrant. Read the opinion.

Concurrence (Alito, J):

The idea that officer safety and the preservation of evidence are the sole reasons for allowing a warrantless search incident to arrest derives from the Court’s flawed reasoning in Chimel v. California, 395 U.S. 752 (1969), and that reasoning should not be a part of the court’s continuing analysis of these searches. Also, the ultimate holding in this case, which is correct, should be subject to change in the future based on legislation enacted by the state and federal governments and not decided strictly on Fourth Amendment grounds. Read the concurrence.


This is about as definitive a loss as we could have expected for law enforcement officers, but after the decision of the Court of Criminal Appeals on February 26 in State v. Granville, it cannot be much of a surprise. The bottom line is that we are getting ready to write a lot more search warrants for cell phones or telling officers that we cannot write a search warrant for a suspect’s cell phone because he does not yet have probable cause. Exigent circumstances will be a valid exception, but it will apply in a minority of cases. Consent is a valid exception, but how many defendants will consent now that they know about this decision (and perhaps even Granville)? Tell officers that they can hold onto the cell phone while they get a warrant. That is clear from the decision. And if you are fearful of a lot of technologically sophisticated criminals in your jurisdiction, better have your officers stock up on Farraday bags or other similar devices (read the opinion to find out what those are and what they do).




Texas Court of Criminal Appeals

Lundgren v. State

No. PD-1322-13                     6/25/14


If a defendant violates his probation after pleading guilty and waiving his right to appeal, but then commits a new offense and thus violates his probation, does a timely filing of a motion for a new trial retroactively toll the commencement of the probation such that the new offense cannot be considered a violation of the terms of his community supervision?


Yes. A waiver of the right to appeal a case does not waive the right to seek a new trial, and a timely filed motion for new trial suspends the implementation of probation until the motion is disposed of. Read the opinion.

Concurrence (Keller, P.J.):

There are two things the State can do to avoid this happening in the future. First, the State can include a waiver to a motion for new trial in all its plea agreements. Failing that, when a defendant files a motion for new trial only to retroactively suspend a probation, the State can agree to the new trial, which opens the case back up and allows the State to seek a sentence of incarceration. Read the concurrence


Think carefully if you want to take advantage of the alternatives suggested by Presiding Judge Keller in her concurring opinion. Defendants will typically be adept at raising something in their motion for new trial that they cannot waive at the time that they enter a plea of guilty (such as ineffective assistance of counsel). And be prepared to rebut a claim of prosecutorial vindictiveness if seeking prison time after a defendant has successfully pursued a motion for new trial (or motion to withdraw his plea of guilty).

Dobbs v. State

No. PD-0259-13                     6/25/14


Was the defendant guilty of resisting arrest with a deadly weapon after he threatened to shoot himself, but not the officers, with the gun he was holding when the officers tried to arrest him?


No. There was no use of force against the officer, a requirement of the law. Had the legislature intended to permit any use of force in the presence of the officer to constitute resisting arrest, it could have easily excluded the term “against” from the statute or made other accommodations for that situation. Read the opinion.

Dissent (Meyers, J.):

The threats inherent in brandishing a deadly weapon, regardless of at whom it is pointed, constitute a use of force. In this case, that force prevented the officers from arresting the suspect, and that is sufficient to constitute the charged offense. Read the dissent.


It is not clear whether the defendant could have been charged with assault of a public servant by threat as an alternative to resisting arrest. The officer testified that he did not feel threatened, and the defendant never aimed the gun at the officer. But after this case, that charge may be easier to prove, although still very difficult. This particular fact situation is more rare than those in which the officer/victim is actually threatened (the gun is actually pointed in the victim’s direction or displayed in a threatening manner). 

Kelly v. State

No. PD-0702-13                     6/25/14


Who bears the ultimate responsibility for assuring that an indigent appellant is allowed access to the appellate record to compose and file a response to appellate counsel’s Anders brief? 


Appointed counsel has a duty to assist the appellant in filing a motion in the court of appeals for access to the appellate record. After that, the court of appeals has the ultimate responsibility to make sure the appellant is granted access one way or another. Upon receipt of the appellant’s motion for pro se access to the appellate record, the court of appeals must enter a formal written order specifying the procedure to be followed in the particular case and send copies to the appellant, his counsel, the State, the trial court, and the trial court’s clerk. Read the opinion.

Concurrence (Keller, P.J.):

The opinion imposes an unnecessary burden on the courts of appeals, which know how to handle these situations on a case-by-case basis better than the Court of Criminal Appeals. Read the concurrence.  

Concurrence (Alcala, J.):

The ultimate responsibility lies solely with appellate counsel. Even if it does not, the courts of appeals should be allowed to address the situation in any way they see fit to achieve the desired result. Read the concurrence.


The Court of Criminal Appeals has imposed numerous responsibilities upon a defense attorney on appeal and on a court of appeals when a defendant has raised a frivolous appeal and the defense attorney files an Anders brief. In many of these cases, defense lawyers will take the much easier road of filing an adversarial brief, to which the State can easily respond and which the court of appeals can easily reject. This opinion will be of interest and application only to defense lawyers and courts of appeals justices.

Rabb v. State

No. PD-1643-12                     6/25/14


When the State proved that a defendant ate a baggie filled with drugs to prevent its seizure by law enforcement, but did not offer any evidence about the condition of the baggie or drugs after the defendant swallowed them, was the evidence sufficient to prove the defendant destroyed the evidence and was therefore guilty of tampering with physical evidence?


No. The indictment alleged only destruction as the manner and means, and while there is some overlap between destruction and concealment (both terms are contemplated by the applicable statute), this was clearly an act of the latter rather than the former. Because it is not only possible but common to ingest a baggie of drugs without damaging them, the State was required to prove to the jury that the drugs were ruined or rendered useless, not just that they lost their evidentiary value. Read the opinion.

Concurrence (Cochran, J.):

The State could have avoided this result by alleging concealment, alteration, and destruction together in the indictment. Read the concurrence.

Dissent (Alcala, J.):

Every human being intimately understands what it means to eat something. A rational trier of fact could have concluded that eating the evidence ruined or rendered it useless. Read the dissent.


Oh, for crying out loud. Are we supposed to believe that, when someone eats a French fry, the French fry remains intact as it works its way to the stomach and beyond? Are prosecutors now required to present expert testimony on the effects of the human digestive process? The bottom line for this case is that prosecutors will need to be careful about what we allege in such a case, and then be prepared to prove it. The court is clearly instructing that it wants the State to allege “conceal” in such a case, not “destroy.”

Gonzales v. State

No. PD-1313-13                     6/25/14


Was the defendant’s right to a speedy trial violated when the State failed to arrest him until six years after he was indicted for injury to a child?


Yes. The delay far exceeded what is normal in such a case, the State did not have a justifiable reason for the delay, the defendant timely asserted his right to a speedy trial after his arrest (and he had no duty to do so before his arrest), and the State did not rebut the presumption of prejudice against the defendant caused by the delay. Read the opinion.

Dissent (Keller, P.J.):

One of the purposes of the speedy-trial guarantee is to protect the defendant against “tolling abuse,” where the State uses a charging instrument to toll the statute of limitations when no serious prosecution would otherwise be forthcoming until after limitations had expired. Because this case was still prosecuted within the statute of limitations and the defendant was not aware of the indictment for most of the relevant period of time, the presumption of prejudice should have been found to be rebutted. Read the dissent.


These are the speedy trial cases that sting—where there is a significant delay, and we are not sure why. There is little that a prosecutor can do except urge law enforcement to pursue outstanding warrants more aggressively, make sure that we document delays better, and develop evidence that a defendant will not really be prejudiced by the delay. 

Price v. State

No. PD-1460-13                     6/25/14


Does the statute defining continuous sexual abuse of a young child permit a defendant to be convicted of both that offense and the attempt to commit one of the underlying sex acts?


No. Because attempt is a lesser-included offense of the completed act of sexual abuse, and because a completed act of sexual abuse is a lesser-included offense of continuous sexual abuse, it follows that the attempt offense is also a lesser-included offense of continuous sexual abuse. Attempt and continuous-sexual-abuse offenses are therefore the same for double jeopardy purposes, and the legislature presumably did not intend to write a statute that permitted a constitutional violation. Read the opinion.

Concurrence (Price, J.):

Because the statute does not make it clear that the legislature intended for a defendant to be convicted for both an attempt to commit a predicate offense and continuous sexual abuse, Blockburger and its judicial presumption that those offenses are the same for double-jeopardy purposes controls. Read the concurrence.


This decision makes sense based upon the reason that the continuous-sexual-abuse offense was created in the first place. In child sex cases, it is often difficult to distinguish multiple offenses from one another, but it is often necessary to present those multiple offenses in a single trial in to show the defendant’s intent or to rebut a defense that he has raised. The continuous-sexual-abuse offense was created so that a jury would not have to be unanimous about any one offense during a particular period of time and so that the State would not have to elect one of those offenses. But we have to make a choice. If a prosecutor is pursuing the continuous-sexual-abuse route, he is choosing to forego gaining one conviction for one particular act committed by a defendant (including an attempt, as in this case). If you will have no difficulty in proving one of those individual offenses, then file that charge instead of continuous sexual abuse.




Office of the Attorney General

Request from the Hood County Attorney

RQ-1207-GA                          6/26/14


What is the proper disposition of surplus property purchased with a sheriff’s commissary account? Read the request.