June 4, 2021

Texas Courts of Appeals

In re State ex rel. Wice

Nos. 01-20-00477-CR – 00479-CR                     5/27/21


Was a change of venue order valid when it was made after a district court judge’s statutory term had expired?


No. Under Govt. Code §74.056(b), the district judge lacked the authority to transfer the cases after his statutory assignment had expired. In addition, the judge was not authorized to sit without an appointment order per Art. V, §11 of the Texas Constitution because the judge’s authority had been challenged by the defendant and “any presumption that [the] Judge ‘was in regular discharge of his duties’ does not apply.” Read opinion.

Concurrence and Dissent (Goodman, J.):

“I think the majority’s refusal to apply Article V, Section 11 is flawed. [The district judge’s] continued involvement in these cases after the expiration of his assignment was expedient and therefore authorized by our Constitution.” Read opinion.


You may recognize this case as the continued pretrial litigation of various issues raised by the prosecutors pro tem in the prosecution of Attorney General Ken Paxton. Because of that, and because of the dissenting opinion, you should certainly expect this change-of-venue issue to be litigated further, either in this court of appeals or by way of a new petition for a writ of mandamus before the Court of Criminal Appeals. As a matter of precedent, this decision may be of little value to the ordinary practitioner. However, if you have an assigned judge presiding over a case, this is a good reminder to look over that judge’s assignment order to determine its scope and duration.

Romo v. State

No. 04-19-00772-CR                  5/26/21


Was the defendant’s possession of a DVD containing footage of men, women, and girls at a nudist camp sufficient to support a conviction for possession of child pornography?


No. Applying five of the six factors set out in United States v. Dost as a guide, the Court held that without more than what was reflected on the record, the evidence was legally insufficient to support a finding that the video depicted a “lewd exhibition of the genitals” as defined in the jury’s charge. Read opinion.

Dissent (Alvarez, C.J.):

“The majority is correct that the Dost factors are an important guide for evaluating whether the video constitutes child pornography, but focusing too heavily on whether the girls are posed unnaturally or whether they exhibit a willingness to engage in sexual activity can cause the evaluator to miss this video for what it is, which is lewd exhibition of child genitalia.” Read opinion.


Before you think that the events in this case are nothing more than the free expression of some families in a nudist camp, read the opinion, in which the court of appeals upheld the defendant’s convictions for continuous sexual abuse of a young child and indecency with a child. However, it does not appear that the DVD was related to the sexual abuse allegations. Instead, it was found among his possessions as the sexual abuse investigation progressed. If you have an atypical child-pornography prosecution like this one, read this opinion closely. But stay tuned. This is an unusual case, and the existence of the (very short) dissenting opinion may increase the odds that the decision will be reviewed by the Court of Criminal Appeals.

State v. Bronson

No. 06-20-00135-CR                  5/26/21


Do the Texas Supreme Court’s emergency orders extend a trial judge’s authority to order shock probation more than 180 days after a defendant began serving a felony sentence?


No. The Court held that “the Texas Supreme Court’s emergency orders ‘do[] not allow a court to create jurisdiction for itself when jurisdiction would otherwise be absent.’ As a result, the trial court was without jurisdiction to grant [a] motion for shock probation.” Read opinion.


This is a brief, but faithful, application of a decision of the Court of Criminal Appeals regarding the permissible scope of a judge’s orders during the COVID-19 pandemic. The decision also directly follows the same recent holding from the Fourteenth Court of Appeals.

Ex parte Hammons

No. 10-19-00362-CR                  5/26/21


Is Penal Code §22.04(a)(2) (injury to a child) unconstitutionally vague because it fails to define “mental deficiency, impairment, or injury” and “serious”?


No. Because ordinary citizens would understand their meaning and the Court of Criminal Appeals had not expressed any concern over construing §22.04(a)(2) in two prior opinions (Stuhler v. State and Franco v. State), the Court concluded the terms are not impermissibly vague. Read opinion.

Concurrence (Gray C.J.):

“Virtually every victim of violence, and especially those of sexual assaults, suffer some level of mental harm. How much harm does it take to be a serious mental injury? … Yes, there are huge hurdles to overcome to prove a violation of this statute. And while I would like for our legislature to have substantially narrowed and defined the conduct that is criminal for this subsection of the statute, I do not believe the entire subsection of the statute is so broad as to be unconstitutional.” Read opinion.


There is very little analysis in this four-page majority opinion. Since this is a facial challenge to the statute (and the First Amendment is not involved), the result is almost certainly correct. But if you are looking for more analysis, read the State’s brief, which is much more thoroughly researched.