June 7, 2019

Texas Court of Criminal of Appeals

Hyland v. State

PD-0438-18        6/5/19


1. Should a trial judge use a heightened legal standard (clearly establish probable cause) for an affidavit after a sustained Franks motion resulted in the excision of some statements?

2. Is probable cause to support a blood search warrant established by testimony that the defendant’s breath smelled strongly of alcohol and he was involved in a serious single-vehicle accident?


1. No. When reviewing a search warrant affidavit after false statements have been excised, the trial court should employ the same probable case standard, not a heightened standard.

2. Yes. The officer’s statements about the smell of alcohol were specific and related directly to the defendant: a strong smell of alcohol from the defendant’s breath. Together with the serious nature of the single-vehicle accident and witness statements that the defendant had been driving, the remaining facts in the affidavit provide probable cause for the blood search warrant. Read opinion.

Concurrence (Hervey, J., joined by Richardson, Walker, Slaughter, JJ.):

“I also write separately to address Officer Harrison’s incorrect use of a preprinted, boilerplate search-warrant affidavit. Such documents are undoubtedly helpful, especially when dealing with unfortunately common crimes like DWI, and promote efficiency when used properly, but that was not the case here. In failing to cross out inapplicable paragraphs with a few strokes of a pen, litigation has ensued that has reached all the way to this Court, the court of last resort for criminal matters in Texas. A preprinted form that was supposed to make the process easier has instead drawn it out, depleting limited governmental resources. This case underscores the need for training. Although the false statements in this affidavit were not fatal to a probable-cause finding, that might not be true in other cases. Society loses when it expends resources obtaining a criminal conviction that is later overturned because legal procedures were not properly followed due to lack of training.” Read opinion.


This is not a Franks v. Delaware decision. In other words, the issue of whether there was a Franks v. Delaware violation had already been decided. This decision deals with the standard of probable cause. In that regard, this decision should be helpful because it makes clear that there is no heightened standard of probable cause after the Franks v. Delaware remedy has been applied—that is, after the false information in the warrant affidavit is ignored. More important to prosecutors generally is the court’s second holding—that the facts of this case (apart from the false information) was sufficient to establish probable cause for DWI. Prosecutors with a case where an officer has arrested a DWI suspect after an accident—and the officer has little more than the strong odor of alcohol coming from the suspect—may rely on this case if the facts are sufficiently similar. But back to Franks v. Delaware for a moment. Read Judge Hervey’s concurring opinion. An officer’s (or prosecutor’s) use of a pre-printed form can unwittingly lead the officer/affiant to make a false statement in his affidavit. Take Judge Hervey up on her advice and do whatever you can to keep that from happening.

Fisk v. State

No. PD-1360-17                6/5/19


Are the elements of former UCMJ Article 125 for sodomy of a child sufficiently similar to Penal Code §22.011 to act as a prior for enhanced punishment?


Yes. A defendant convicted of indecency with a child under Penal Code §21.11 who has a prior conviction for a sexual offense enumerated in Penal Code §12.42(c)(2)(B) receives a mandatory life sentence. A prior conviction under the laws of another state, or the UCMJ, may be used as an enhancement when the elements are “substantially similar” to the elements of an enumerated Texas offense. In this case, the elements of the previous conviction were proven at trial with a certified copy of the court martial order. It is unnecessary to analyze all possible manners of committing an offense under Article 125, because the elements of the defendant’s conviction are substantially similar to Penal Code §21.11. It is irrelevant that Article 125 criminalizes other conduct that is not found in §21.11. The second prong of Prudholm’s test (similar interests protected and seriousness of the offense) is overruled. Read opinion.


This was a badly needed decision. Now when comparing non-Texas convictions to determine if they can be used under this special enhancement provision, there is no longer any need to compare the severity of the offenses, or the punishment ranges, or anything other than the elements of the offenses that were actually committed. This decision should make the task much easier for attorneys and judges to make the correct enhancement determination.


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