March 21, 2014

Texas Court of Criminal Appeals

Ex Parte Lo (on State’s motion for rehearing)

No. PD-1560-12                     3/19/14


Did the court violate Texas Government Code §402.010 by not serving notice to the attorney general of the constitutional question presented in the original petition in Lo, questioning the constitutionality of the online solicitation statute?  


Yes, but §402.010 is unconstitutional because it violates the separation-of-powers doctrine of the state constitution, so the requirement is void. Read the opinion.

Concurrence (Keller, P.J.):

It is a violation of the separation-of-powers doctrine for the legislature to impose deadlines on a court’s entry of final judgment. Read the concurrence.


Whether one views §402.010 as an attempt by the Legislature to ensure someone stands up for the validity of legislation in court or an attempt by the AG to step into high-profile constitutional cases, it is clear that in criminal cases, the section is a dead letter. Perhaps more importantly, though, the Court of Criminal Appeals’ decision striking down part of the online solicitation statute is essentially final.

Berry v. State

No. PD-1416-12                     3/19/14


Could the defendant be found guilty of misapplication of fiduciary property on the theory that he was acting in a fiduciary capacity when he took payments from customers for window treatments and then failed to deliver those goods as promised?


No. For the first time, the court created a definition for the statutorily undefined term “fiduciary capacity” and held that “one acts in a fiduciary capacity for purposes of the statute if his relationship with another is based not only on trust, confidence, good faith, and utmost fair dealing, but also on a justifiable expectation that he will place the interest of the other party before his own.” Although the defendant clearly acted contrary to an agreement with which his customers trusted him to comply, there was no evidence as to a justifiable expectation that he would place their interest before his own. Read the opinion.


Simply accepting money for future performance does not make someone a fiduciary. Luckily, it appears the defendant was also convicted of theft for the same transactions. Misapplication tends to be an offense used mainly by white-collar specialists.

Brown v. State

No. PD-1723-12                     3/19/14


Did the trial court follow proper procedures when it ruled the defendant had voluntarily absented himself from trial (after attempting suicide by shooting himself in the head), denied a motion for a competency hearing, and continued with closing arguments without the defendant being present?


No. The court should have first held a hearing to determine if the defendant was competent, and if the defendant was found to be competent, then the court could have proceeded with an analysis regarding whether the competent defendant absented himself. Read the opinion.

Concurrence (Cochran, J.):

Attempting suicide provides enough of a suggestion of mental incompetency as to necessitate a competency hearing. Read the concurrence.

Dissent (Price, J.):

The question in the case should have been whether the decision to attempt suicide was voluntary or whether it was involuntary due to a mental illness that compelled the decision. Read the dissent.

Dissent (Keasler, J.):

By voluntarily absenting himself from the trial, the defendant waived his right to challenge whether he was competent. Read the dissent.  


Add this to your litigation of the absurd file. The defendant did not like how his murder trial was going so he shot himself in the middle of trial. Contrary to one of the concurrences, it is not all that rare that defendants do stupid things in the middle of trial. Benders, ODs, and low-speed and high-speed dashes for the border all come to mind. When does misbehavior indicate mental illness? Here, the defendant’s attempted suicide, and the evidence that his injuries made him unable to assist counsel, were some evidence that required the trial court to at least make an informal inquiry under the competency statute. If indeed the defendant rendered himself incompetent, then that would end the trial.

Rubalcado v. State

No. PD-0195-13                     3/19/14


When a defendant was on trial for aggravated sexual assault in Ector County, and Midland County officials persuaded the victim to secretly record conversations with the defendant as part of a Midland County investigation, did Ector County prosecutors violate the defendant’s Sixth Amendment right to counsel when they used the recorded conversations in the Ector County case?


Yes. Although the defendant’s right to counsel had not yet attached as to a prosecution in Midland County, the Ector County prosecution had already begun when the conversation was recorded, constitutionally barring its admission in the Ector County proceedings. Read the opinion.


A thorough, well-organized opinion dealing with many advanced issues related to ongoing or multi-jurisdiction investigations. Prosecutors and law enforcement who work on these cases would do well to read this opinion several times. The court’s holding that all criminal acts that might fall under the warrant are the same offense might warrant further scrutiny in light of Cobb. A greater concern, though, might be the court’s acceptance of the United States Supreme Court’s concept that the knowledge of one law enforcement agency is imputed to another. Frankly, this defies reality—it is entirely possible that officers in the same agency might be unaware they are investigating the same defendant and thus unaware of key facts such as the attachment of counsel. Far from working together in lockstep, neighboring counties and agencies sometimes work at cross purposes. Proving actual knowledge would not be unduly burdensome for the defense.

Texas Courts of Appeals

Gardner v. State

No 01-13-00214-CR               3/18/2014

No 01-13-00215-CR

No 01-13-00216-CR


1) Were the defendant’s recorded statements to law enforcement, obtained without Miranda warnings, admissible as non-custodial even though he was sitting in a police car and requested counsel?

2) Did a search warrant affidavit provide sufficient probable cause to search the defendant’s house for a computer, and then to search the computer itself, when it recited facts that showed a detective had confirmed child pornography was being shared over peer-to-peer networks from an IP address registered to the defendant’s house?


Yes to both. The officers repeatedly told the defendant he could leave at any time, questioning ceased when he unambiguously requested an attorney, and in fact, he was not arrested until several weeks later. The detective’s virtual encounter with the images, coupled with the detective’s experience in investigating internet crimes, provided the personal knowledge required to justify the search warrant. Read the opinion.


The opinion does a good job of contrasting this case with a recent Fifth Circuit opinion suppressing a “non-custodial” statement. It also gives a detailed description of a warrant affidavit that will survive scrutiny in these kinds of cases. Give a copy of this opinion to all officers doing ICAC investigations. Officers should remember, though, that not all judges understand IP addresses as well as others, so a simple explanation of what they are and why they matter is a good inclusion. Also, information regarding the reliability of MCMEC’s information as well as ISP information is also helpful to include. Many affidavits lack this information and would be better if it were included.

Dibello v. State

No. 01-13-00235-CR              3/13/14


Was a child sex assault victim’s videotaped interview admissible as a prior consistent statement even though parts of the interview did not match the victim’s trial testimony, and it did not pre-date all of the alleged improper influences imposed on the victim by adults telling him how to testify?


Yes. To be admissible, prior consistent statements need to be only generally consistent with trial testimony, and they must pre-date only one alleged improper influence, not all alleged improper influences. Read the opinion.


A straightforward analysis to a common issue in child abuse cases.


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