June 6, 2014



Texas Court of Criminal Appeals

Ex Parte Coty

No. WR-79,218-02                 6/4/14


Did the habeas court correctly find that the State had rebutted the presumption of falsity that arose from a lab technician’s proven record of falsifying evidence in previous cases?


Yes. The State proved the technician had not committed intentional misconduct in this case by introducing testimony and test results that showed the technician had actually followed the required steps in testing the evidence. Read the opinion.


With this decision, the State now clearly has hope when confronted with a case in which the conduct of a bad scientist has threatened to ruin a conviction. Back in January in this case, the court gave us a new set of rules to follow in “bad scientist” cases that backed away from a “defendant always wins” approach. Now with this decision and with the new rules put into practice, the State has a clear roadmap to save an otherwise valid conviction. Thank goodness. The prospect of the finding of an automatic due process violation would have been devastating. The State is still going to have to do some work, as evidenced by this case, but at least now there is some hope.

Ex Parte Jones

No. PD-1158-13                     6/4/14


When the legislature passed a bill in 2011 that amended the evading arrest statute, did that bill violate the “single subject” rule of the Texas Constitution because it dealt with both the criminalization of tire deflation devices as well as enhancements for evading in a vehicle?


No. “Single subject” does not mean the bill can have only one provision, it means all of the provisions in the bill must relate to the same general subject and have a mutual connection. In this case, the mutual connection is that both provisions relate to offenses that are committed while evading in a vehicle. Read the opinion.


The odds of a prosecutor ever having to confront an alleged single subject violation are pretty slim. If you do, here is the analysis for you— but be forewarned. The weeds are pretty deep in this opinion. The bottom line in this case is that the defendant was guilty of a third-degree felony, not just a state jail felony.




Texas Courts of Appeals

Flowers v. State

No. 06-13-00102-CR              6/3/14


When police asked for permission to retrieve a contact’s phone number from the defendant’s phone, and the defendant responded by consenting and telling them under what name the contact’s number was saved, did police exceed the scope of consent when they also searched and photographed the defendant’s call history?


No. The defendant said the number was “saved under” the contact’s name, but an objectively reasonable person could have interpreted that response as a helpful suggestion to the person searching the content of the phone rather than an explicit limitation. Read the opinion.


This is a rather thorough discussion of scope of consent. It is well thought out and well researched, so it should hold up if the defendant decides to seek a petition for discretionary review. And because it deals with a cell phone, this consent issue is very likely to come up again. (There is also a good discussion of how to lay the proper predicate for admitting a prior inconsistent statement.)

State v. Jackson

No. 11-12-00315-CR              5/30/14


When officers illegally attached a GPS device to the defendant’s car that allowed officers to track his movements and then pull him over for speeding, did the traffic violation and the defendant’s consent to search the car constitute attenuating circumstance that removed the taint of the illegal GPS device and rendered the search of the automobile and subsequent seizure of narcotics legal?


No. Even though the officers complied with then-existing law when they obtained a court order to attach the GPS device, the constitutionality of that law changed when the U.S. Supreme Court decided U.S. v. Jones, 132 S.Ct. 945 (2012) and required either a warrant or an exception to the warrant requirement to legally attach a GPS device. Because there was no warrant to justify a good-faith exception under Texas law, and because the stop was possible only because of the illegal GPS search, the taint of the illegal stop had not dissipated when the defendant consented to the search of the vehicle. Read the opinion.


The installation and tracking of the GPS device in this case was done in December 2011, just a few weeks before the United States Supreme Court issued its decision in United States v. Jones, so it was going to be quite difficult for the State to win in the first place. Nevertheless, the State put forth a Herculean effort on appeal to save this case from the trial judge’s ruling. It was just too difficult to get around Jones and the particular requirements of Texas’ own “good faith” exception to the exclusionary rule (Art. 38.23 of the Code of Criminal Procedure).




Office of the Attorney General

Opinion for the Administrative Director of the Office of Court Administration

GA-1063                     6/3/14


The opinion request asked 10 questions regarding assessment and distribution of court costs across various circumstances that cannot be easily summarized, and according to the Attorney General, are too general to be answered in some cases. The full request can be viewed here.


The Attorney General made the following statements in regard to what his office could answer concerning court costs:

The fee imposed under Art. 102.005 of the Code of Criminal Procedure applies to a defendant convicted of an offense in a county-level court. A defendant whose conviction from a municipal court of record was affirmed at the county-court level would not be subject to the fees imposed under Art. 102.005 because the conviction occurred at the municipal level. Unlike an appeal from a municipal court of record, however, a defendant appealing a conviction from a municipal court that is not a court of record may be convicted at the county-court level following a trial de novo.

Certain court costs and fees can be assessed for each convicted offense of a defendant, while others can be assessed once per case, and a determination about a specific cost or fee requires a review of the statute or rule imposing that cost.

While Arts. 42.03 and 45.041 of the Code of Criminal Procedure authorize a court to give a defendant credit only for time served from the time of arrest and confinement until sentencing by the trial court, other provisions authorize certain courts to use a defendant’s time served to satisfy court fines and costs in specific instances. Whether a convicted defendant may be given credit toward outstanding court costs requires analyzing specific facts against the relevant statute authorizing the credit.

Art. 102.011(a)(2) of the Code of Criminal Procedure authorizes a court to assess a separate fee for each arrest warrant issued even when multiple warrants result in only one arrest.

Art. 102.011(a)(6) of the Code of Criminal Procedure authorizes a $5 fee for commitment or release services performed in the case by a peace officer. A court could conclude that any commitment or release from jail after the case’s conclusion would not be a service performed in the case and that Art. 102.0ll(a)(6) does not authorize fees for those services.

Read the opinion.



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