March 15, 2019

Texas Courts of Appeals

Ex parte Ramos

No. 08-17-00070-CR        3/06/19


May the State re-indict a defendant when a jury convicted the defendant on a wrongly-submitted lesser-but-not-included offense and the court of appeals reversed for jury charge error?


Yes. In this case, assault by threat was erroneously included in the jury charge as a lesser included offense of murder. As the assault by threat was not a proper lesser-included offense, double jeopardy does not attach and the State may re-indict the defendant. “Assuming for the sake of argument that there is a narrow window through which a crime which was improperly submitted as a lesser-but-not-included offense for jury charge purposes could still constitute a lesser-included offense barred by double jeopardy on re-indictment, we cannot see how that needle gets threaded in this case.” Read opinion.


The court struggled with this result but ultimately followed what it viewed as controlling caselaw from the Court of Criminal Appeals. Perhaps the higher court will review this case to clarify what bothered the court of appeals.

Ex parte Alvarez

No. 03-18-00775-CR        3/7/19


Is a defendant entitled to credit for time served while an appeal is pending when he was not in custody but had attempted to voluntarily surrender to the county jail?


No. A defendant may be entitled to credit for time served if he is erroneously released or remains out of custody through no fault of his own, such as a defendant who was legitimately released on appeal bond but was not re-incarcerated immediately following the final conviction because the State failed to issue an arrest warrant until 20 years later. Here, the defendant did not pay the bail amount or execute an appeal bond, so he was not legitimately released. Although the trial court’s order committing the defendant to the custody of the sheriff was erroneously recalled and the defendant attempted to surrender to the county jail, the State’s failure to take the defendant into custody was while the appeal was pending rather than after the conviction had been finalized. Under these circumstances, the defendant is not entitled to credit for time served. Read opinion.


The court distinguishes cases where defendants were released through no fault of their own. Because this defendant did not post his appeal bond, he was not entitled to credit for the time he was out of custody pending parole.

Akins v. State

Nos. 09-18-00057-CR to 09-18-00060-CR               3/6/19


May the State search an abandoned laptop without a warrant?


Yes. Property that has been abandoned is not subject to protection against search and seizure under the Fourth Amendment. Property is considered abandoned if the defendant intended to voluntarily relinquish his interest in the property for reasons unrelated to police misconduct. Here, the laptop was found by the defendant’s landlord while cleaning out a rental trailer. The defendant had left the trailer four months prior without paying rent, and property left behind was presumed abandoned. Although the laptop was password-protected, this was insufficient to demonstrate that the defendant maintained a legitimate expectation of privacy in the abandoned property. Read opinion.


This will be a useful case. Note that in some other states, courts make a distinction between property that is lost or mislaid and property that has been abandoned.

Flores v. State

No. 01-18-00260-CR        3/7/19


Is a defendant entitled to a mistake-of-fact instruction when he testified that he did not have the intent necessary to commit the charged offense?


No. A defendant may request a mistake-of-fact defense instruction when some evidence is presented that shows the defendant was mistaken about a fact that negated the mental state required for criminal responsibility. Here, the defendant was charged with solicitation of capital murder. He testified at trial that he hired the man to threaten or assault the victim, not to kill the victim. Although, if believed, the testimony would negate an essential element of the offense, the testimony does not indicate that the defendant was mistaken about any fact that would negate his culpability, and he was therefore not entitled to a mistake-of-fact instruction. Read opinion.


Remember that courts review the denial of a defensive instruction under a very deferential standard of review. This defensive theory is probably common in solicitation cases so the case may be useful reading for prosecutors preparing one for trial.


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.

TCDLA and State Bar CLE

The Texas Criminal Defense Lawyers Association (TCDLA), with co-sponsorship by the State Bar’s Criminal Justice Section, is hosting a CLE called “What You Need to Know About Sex Offender Registration” on Friday, April 26 in Austin. Registration for prosecutors and staff is free before April 15 and $50 after that. See the flyer here for more information, and register online at

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.

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.