Our bookstore is temporarily closed. Please check back soon.

March 27, 2015



Supreme Court of Texas

Kallinen and Kubosh v. Houston

No. 14-0015                                    3/20/15


Does a requestor have to wait until the Attorney General rules on an open-records request before seeking a ruling on the request in court?


No. Although the governmental body that is the subject of the request can ask the AG for a ruling, the requestor has no remedy apart from the courts. The requestor cannot be asked to wait until the AG finishes something the requestor cannot start. Read the opinion.


This is a decision that prosecutors handling open records requests must consider. If the requestor goes to court, the matter will be resolved in court—the AG by policy will bail out, and there is no legal basis to stop court proceedings on the basis that the AG has not answered a request for an open records decision. And if the State loses in court, the State may have to pay the requestor’s attorney fees.

Texas Courts of Appeals

Perez v. State

No. 01-12-01001-CR                        3/25/15


When the defendant objected to the warrantless draw of his blood at a DWI suppression hearing, did he preserve for appeal his Fourth Amendment objection to a warrantless blood draw by saying, “I don’t believe that the State has properly followed the law when they withdrew the blood here and the statutory and the constitutional law and caselaw regarding withdrawal of blood with a warrant?”


Yes. These objections were sufficient to put the trial court on notice that the defendant was complaining that his Fourth Amendment rights against unreasonable search and seizure were violated by the warrantless taking of his blood sample.


Decisions like this will encourage vague objections that don’t put prosecutors on notice of the issue in play. Here, the prosecutor believed the challenge was the officer’s authority to draw blood, and the prosecutor informed the court that the Transportation Code authorized a blood draw. But because the defense included general legal gobbledygook at the end of his objection, the court of appeals reaches out to the McNeely issue. Objections need not be mathematically precise, but they are required to be specific. The law at the time of this objection was generally thought to be that one could seize blood without a warrant under Schmerber.

Juarez v. State

No. 06-14-00052-CR                        3/24/15


During voir dire of a strangulation case, when the State asked a potential jury member if the venireperson would be inclined to acquit the defendant unless the State showed bruising on the victim’s neck, did the State ask an improper commitment question?


No. The ultimate issue is whether the question seeks information to support the exercise of a challenge for cause or peremptory challenge or merely attempts to indoctrinate the veniremembers on the party’s theory of the case. In this case, the question was used to determine if the veniremember could follow the law. Read the opinion.


This opinion shows a good prosecutor at work in voir dire on a family violence case. The prosecutor used jurors’ responses to identify other jurors with the same issue—increasing the State’s burden of proof by requiring particular types of evidence, such asbruises, blood, or DNA—that the State is not required to produce. Put this case in your voir dire notebook.


TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected].