March 20, 2020

Texas Courts of Appeals

Herrera v. State

No. 05-18-01149-CR              3/12/20


When sentencing a defendant, may a trial court rely on a pre-sentence investigation (PSI) report (PSI) that contains information about an extraneous offense for which no evidence was received by the trial court during either the guilty plea or sentencing hearing?


Yes. A trial court may consider a defendant’s criminal history identified in a PSI when assessing punishment. Unless one of the statutory exceptions apply or the defendant waives the requirement, the trial court is required to direct a supervision officer to prepare a PSI in a felony case any time the sentence is to be determined by that court. Tex. Code Crim. Proc. Art. 42A.252(a). Read Opinion.


This is a useful little opinion. The court also held, consistent with other courts of appeals, that complaints about PSIs—even constitutional claims—cannot be raised for the first time on appeal.

Turley v. State

No. 14-18-00235-CR & -00236-CR               3/12/20


Can a 4-year-old child commit the offense of prostitution as a matter of law?


No. The Court concluded that a 4-year-old child cannot commit the offense of prostitution because the child lacks the mental capacity to consent to sexual conduct as a matter of law. To meet its burden to prove the defendant committed the offense of compelling prostitution of a child, the State must have presented sufficient evidence that the child-victim was caused to commit the offense of prostitution. This includes proving the underlying culpable-mental-state element of the offense of prostitution, which is “knowingly.” Read Opinion.

Concurring (Frost, C.J.):

“This case presents simple questions and calls for simple answers. Instead of taking the clear-cut path to reversal, the majority forges new trails to reach that destination, leaving dangerous debris along the way. For the sake of future travelers (and Texas jurisprudence), the court should stay on the sure path and leave trailblazing for a case that holds no other option.” Read Opinion.


This case is troubling because neither the majority nor the concurrence address the State’s arguments under the law of parties. A defendant may be criminally responsible for the conduct of another person even if that person is not criminally responsible. See Tex. Penal Code. §§7.02(a)(1); 7.03(1). Thus, even if a juvenile cannot be prosecuted for the offense of prostitution, the defendant may be a party to that offense if the juvenile engages in the conduct.

Texas Attorney General

KP-0295                      3/16/20


Must revenue generated from inmates’ use of a PIN debit system to pay for phone time be credited to the county general fund?


Yes. Revenue derived from money allocated from an inmate trust fund account to a phone service provider’s PIN debit account without passing through a facility’s commissary account as described in Local Government Code §351.0415 must be credited to the general fund of the county, not to the commissary funds under the sheriff’s exclusive control. Read Opinion.


This round of the continuing war of Commissioners Court versus Elected Official Discretionary Funds goes to Commissioners Court.

Texas Attorney General Request for Opinion

RQ-0338-KP               Request Received 3/16/20


What are the authorities of a district attorney investigator who is not a licensed peace officer, including the right to carry a firearm in a courtroom?