March 22, 2019

Court of Criminal Appeals of Texas

State v. Martinez

No. PD-0878-17                3/20/19


May the State, without a search warrant, independently test a blood sample drawn from a defendant by a medical professional in the course of treatment?


No. A defendant has a reasonable expectation of privacy in a blood sample that is drawn for medical purposes. A defendant’s 4th Amendment protections may be implicated at three separate stages of a blood alcohol test: 1) drawing the blood sample, 2) testing the blood sample, and 3) obtaining the test results. Although the State may use a grand jury subpoena to receive medical records, including test results, or to seize a blood sample that has already been drawn, a search warrant is required before the State itself may conduct any tests. Read opinion.


At first blush, this seems like a significant retreat from State v. Hardy and State v. Huse, but the facts were slighly different. The hospital did not test Martinez’s blood; thus, there were not non-privileged records of the blood test results. The Court holds he maintained a privacy interest in the contents of his blood in the tube. Those relying on novel applications of the third-party doctrine or abandonment might be interested in this case.

Supreme Court of Texas

Hillman v. Nueces County

No. 17-0588                       3/15/19


Does a county have immunity from suit from a prosecutor who claims he was fired for disclosing Brady/Michael Morton material against the wishes of his supervisor?


Yes. Although the cause of action for wrongful termination available under Sabine Pilot v. Hauck, 687 S.W.2d 733 (Tex. 1985), applies to government employers, the county is still immune from suit. Sovereign immunity can be waived only by “clear and unambiguous” statutory language, and in this case, Code of Criminal Procedure Art. 39.14 does not contain a provision regarding immunity. It is the role of the legislature to decide by statute in what circumstances governmental immunity is waived. Read opinion.

Concurrence (Guzman, Lehrmann, and Devine, JJ.):

Hillman may have a claim for equitable relief under an ultra vires theory but has declined to pursue that claim. “However, as a policy matter, I am dubious that a remedy limited to prospective equitable relief is strong enough to deter the egregious conduct alleged here. To be effective, the remedy must be proportional to the wrong. To my mind, the threat of other consequences, including monetary relief, would provide the external pressure required to motivate vigilance and self-policing. The Legislature is better suited, and constitutionally constituted, to weigh the policy interests that bear on whether to waive immunity (and to what extent), but as to that matter, this case makes painfully clear that what’s past is prologue.” Read opinion.


Consistent with existing law, this case will nevertheless inflame the passions of those who believe prosecutors are not held accountable for misdeeds. That it falls in the middle of the legislative session only increases its effect.

Texas Courts of Appeals

Villanueva v. State

No. 01-18-00115-CR        3/14/19


Are the statements of a witness to a mugging, spontaneously offered to the police as soon as they arrived on scene, testimonial in nature?


No. Statements made to police to address an ongoing emergency are not testimonial. Here, the statements are non-testimonial because police arrived at the scene minutes after the mugging, the victim was still bleeding and disoriented following the assault, the defendant was still present at the scene, and the witness initiated the interaction with police. Admitting the statements into evidence through an officer’s testimony did not violate the Confrontation Clause, nor were the statements inadmissible hearsay. Read opinion.


This is a straightforwad application of Crawford and Davis that will come in handy at trial.

Mitchell v. State

No. 06-18-00013-CR        3/14/19


Does encouraging a witness not to meet with the district attorney constitute tampering with a witness under Penal Code §36.05(a)(1)?


No. Under Penal Code §36.05(a)(1), a person commits the offense of tampering with a witness if he coerces a witness to testify falsely. Here, the defendant wrote letters to the victim asking her to lie, to meet with defense counsel, and not to meet with the district attorney. Although asking a witness to lie does constitute tampering with a witness, an indictment and jury charge that allowed the jury to convict on any one of the three actions caused egregious harm because asking the witness not to meet with the prosecutor does not constitute an offense. Read opinion.


This case is about jury charge error, not sufficiency of the evidence. The charge allowed conviction for an allegation that did not sustain a conviction for witness tampering, although it also permitted conviction for proper theories. The Court found Mitchell suffered egregious harm, and thus, the case was reversed even though he did not object to the charge at 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.