March 1, 2019

Texas Court of Criminal Appeals

State v. Doyal

No. PD-0254-18                2/27/19


Is Gov’t Code §551.143, prohibiting members of a government body from engaging in secret deliberations to circumvent the Open Meetings Act, unconstitutionally vague?


Yes. A statute is impermissibly vague when a court cannot determine precisely what the prohibited conduct is. The statute in this case is too abstract, with insufficient limiting language or clarification on the scope. The broad language and lack of clarity are likely to chill speech due to a great degree of uncertainty about what communications may fall under the statute. Read opinion.

Concurrence (Slaughter, J.):

Gov’t Code §551.143 is unconstitutional not because it is impermissibly vague, but because it violates the First Amendment by abridging freedom of speech. Criminalizing discussions by members of a governmental body outside the context of a formal meeting significantly infringes on the right to engage in informal discussion regarding government matters. Such a broad regulation is not sufficiently narrowly tailored to achieve the compelling interest of ensuring an open and transparent government. Read opinion.

Dissent (Yeary, J.):

“Yet another perfectly good statute falls today, adding fuel to the claims that this Court is often too quick to reject the considered will of our state’s Legislative Department. In my opinion, striking this law is unnecessary. … I would hold (for some, but not all, of the reasons identified in Judge Slaughter’s concurring opinion) that Section 551.143(a) of the Government Code, the Texas Open Meetings Act, is not unconstitutionally vague. … But I disagree with Judge Slaughter that it nevertheless violates the First Amendment to the United States Constitution.” Read opinion.


At issue here is the so-called “walking quorum” prohibition in the Texas Open Meetings act. Open government and public interest groups will howl about this decision. The majority, concurrence, and dissent are all based on Supreme Court vagueness and First Amendment caselaw. The case could attract the attention of the Supreme Court because of the interplay between open-government and the First Amendment.

Texas Courts of Appeals

Welsh v. State

No. 07-18-00227-CR        2/26/19


Is evidence that a defendant injured himself to falsely accuse a staff member (of the facility in which he is civilly confined) of assault sufficient to support a conviction for tampering with or fabricating evidence under Penal Code §37.09?


No. To violate Penal Code §37.09, a defendant must: 1) know that an investigation is pending or in progress; 2) make, present, or use a thing with knowledge of its falsity; and 3) act with the intent to affect the course or outcome of the investigation. Satisfying the second element requires fabrication of physical evidence, not merely a false statement. Here, the defendant inflicted injuries on himself intending to use them as evidence of an assault that did not occur. Although the accusation of assault was fabricated, the injuries themselves were not. The defendant’s actions constitute the conveyance of false information, which may be prohibited by other Penal Code statutes, but not by §37.09. Read opinion.


This rare appellate acquittal is a good example of the main reason why cases are acquitted on appeal—the State’s charging decision. This case is not about the strength of the State’s trial evidence, but how that evidence fits within the statutory elements of the offense. This case, and the cases on which it relies, may also demonstrate that the existing offenses of Obstruction and Retaliation, False Report, Perjury, and Tampering do not fully cover or adequately punish persons who lie to officers during an investigation.

State v. Arellano

No. 13-17-00268-CR        2/21/19


May the State rely on the good faith exception under Code of Criminal Procedure Art. 38.23 when a search warrant lacks the signing magistrate’s name?


No. Code of Criminal Procedure Art. 18.04(5) requires search warrants to include the name of the signing magistrate in clearly legible handwriting or in typewritten form. A search warrant that does not comply with this standard is facially invalid. For the State to avail itself of the good faith exception, the officer must act in objective good faith reliance upon a warrant that is facially valid. Because a warrant lacking the name of the signing magistrate is facially invalid, the good faith exception is not applicable. Read opinion.


The court’s application of Article 38.23(b), the statutory “good faith” exception to the exclusionary rule, deserves further review. The Court seems to rely on dicta from McClintock in holding that the good faith exception applies only where an officer relies on a “facially” valid warrant. But the word “facially” does not appear in Article 38.23(b) at all. In the meantime, take care that officers and judges are clearly printing the judge’s name on search warrants.

Griffin v. State

No. 01-17-00604-CR        2/21/19


Is an accomplice-witness jury instruction required when a witness knew the crime was going to be committed, was present at the scene, and is in the same gang as the defendant?


No. A witness is an accomplice only if he participates in the crime with the defendant. For a jury instruction to be appropriate, there must be evidence that the witness performed an “affirmative act” to assist in the commission of the crime. Here, the witness knew that the defendant intended to kill the victim (a member of a rival gang), was present at the club when it happened, and celebrated with the defendant and other gang members afterward. These actions do not amount to an affirmative act in furtherance of the crime. Read opinion.


This opinion amounts to a survey of cases on the issue of “bad guy” witnesses who were not accomplices for the purposes of an accomplice-corroboration instruction.

Nicholson v. State           

No. 14-17-00610-CR        2/26/19


In the trial of a man accused of murdering his wife, may a venireperson be struck for cause because she is a victim of domestic violence and believes she could not “stand alone” against 11 other jurors?


No. To strike a venireperson for cause, the challenging party must show that the venireperson understands the requirements of the law and is not able to overcome her prejudices to follow the law. Before striking a venireperson for cause, the trial court must explain the law and ask if she can follow the law as explained, regardless of her personal views. Here, the venireperson responded to the court’s inquiry by stating that she could put aside her personal feelings and judge the case fairly based on the evidence. She also stated that she was “scared when it comes to standing alone” but promised the court that she could vote her conscience and would not change her vote if she felt pressure from other jurors. Her answers did not support a strike for cause. Read opinion.


The court devotes most of its opinion on this issue to recounting the voir dire examination of the juror. Appellate review of a challenge for cause is heavily dependent on the juror’s testimony. Here, the juror answered some questions in a way favorable to the defense, and some in a way favorable to the State. In that situation, the trial court’s resolution of the issue is generally upheld by the appellate court.

Texas Attorney General Opinions



What standards should courts apply when balancing the rights of the State against the fundamental rights of parents to raise their children free from government intrusion?


The Due Process Clause of the 14th Amendment protects certain fundamental parental rights, including the right of parents to make decisions concerning the care, custody, and control of their children, to direct the upbringing and education of their children, the right to make medical decisions on behalf of their children, and, in conjunction with the First Amendment, to guide the religious future and education of their children.

Courts review governmental infringements on fundamental rights protected by the Due Process Clause under strict scrutiny, requiring that the statute serve a compelling state interest and be narrowly tailored to achieve that interest.

In addressing child custody disputes between parents or in instances of abuse and neglect of a child, the Legislature has established the standard by which courts must resolve those disputes. Pursuant to §153.002 of the Family Code, the best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.

A court may not permanently and irrevocably terminate parental rights absent clear and convincing evidence of the allegations supporting the termination. Read opinion.


TDCAA Domestic Violence Seminar

Registration is now open for TDCAA’s 2019 Domestic Violence Seminar. Whether you are new to prosecution or a seasoned hand, this course will cover practical skills you need to do your job today. From intake to advocacy, this is Domestic Violence training developed for Texas prosecutors and presented by Texas prosecutors. Join us in Georgetown Texas April 9­–12 for this exciting training opportunity. For more information, please click here.

NCFI Digital Evidence for Prosecutors Training

The National Computer Forensics Institute is offering free training for state and local prosecutors on the investigation of crimes involving technology and presenting digital evidence in court. These five-day courses are held at the NCFI facility in Alabama at no cost to participating prosecutors. The application deadline is March 29. More information and the application are available here.

Obtaining historical information

For those prosecutors who are still waiting on historical ads as evidence in pending cases, the federal agencies in control of that information are now accepting new requests for that ad information. Instructions for investigators and prosecutors is available here.

State Bar now taking scholarship applications for upcoming training

The Criminal Justice Section is taking applications for scholarships for various courses. You must be a current member of the Criminal Justice Section to apply. Preference will be given to lawyers licensed 5 years or less. A list of courses and the scholarship application may be accessed here.