March 6, 2020

Texas Courts of Appeals

Wiltz v. State

Nos. 14-18-00718-CR & 00719-CR              2/27/20


Does a defendant have standing to challenge the constitutionality of a cellphone search when, after he was handcuffed, he fled from police and left behind his vehicle and everything in it, including his cellphone?


No. The defendant abandoned his cell phone in his open car and therefore lacked standing to challenge the constitutionality of the cellphone search. The Court indicated that as the defendant stood handcuffed, before he fled, he retained the privacy protections to his cell phone. However, once the defendant opted to flee the scene and leave his cell phone behind, the defendant intentionally gave up any privacy rights to information on the cell phone. Read Opinion.


Be careful when your situation involves property that may be lost instead of abandoned. Courts in other states have suppressed warrantless searches of phones deemed lost. Here, the facts regarding the defendant’s behavior demonstrate he was trying to separate himself from the car (and its contents) rather than misplacing them.

Moreno v. State

No. 04-18-00709-CR         2/26/20


May a jury consider evidence outside the date range listed in a continuous sexual abuse indictment?


Yes. In a continuous sexual abuse case, if evidentiary facts exceed the date range in the indictment, that testimony can be considered to show the continuous nature of the abuse. If the record establishes numerous sexual contacts between an accused and a victim that exceed the scope of the indictment, a jury may rationally infer that the date range element of continuous sex abuse has been met. Additionally, the defense did not challenge the accuracy of the dates listed in the indictment. Instead, the defendant placed the victim’s credibility in issue and not the dates of his interactions with the victim. Thus, the defendant did not suffer from any lack of notice. Read Opinion.


This is a common application of the “on or about” rule of pleading and proof. But be careful: The defendant’s age and the victim’s age may require additional jury instructions to prevent the jury from convicting the defendant for an act that does meet the definition of the offense.

Hestand v. State

No. 02-18-00334-CR         2/27/20


Was a defendant’s sentence illegally enhanced partially through the use of a prior juvenile adjudication, which arose from the commission of a felony offense and resulted in the defendant’s indeterminate commitment to a TJJD facility?


No. Although the defendant’s prior juvenile adjudication was based on the commission of a state-jail felony, Family Code §51.13(d) allows juvenile adjudications based on “a felony offense,” regardless of degree, to be used later to enhance a state-jail felony offense’s punishment range under Penal Code §12.425(b). Read Opinion.


This opinion reaches a quirky result in the Penal Code’s increasingly complicated enhancement scheme. A state jail felony conviction cannot be used to enhance a felony conviction, but a juvenile adjudication for a state jail felony can be used. This case is set up well for further review since there is now a split between courts of appeals. The defendant’s extensive criminal history sets him up as an unsympathetic straw man in the statutory construction debate.

Texas Attorney General Request for Opinion

RQ-0336-KP        Request Received 2/28/20


  1. When determining whether a county judge is entitled to the salary supplement provided in Texas Government Code §26.006(a), what is the appropriate method to calculate whether 40 percent of the functions performed are judicial functions?
  2. What remedies are available to county or district attorneys, or other representatives of county or state government, if a county judge claims entitlement to the supplemental pay by submitting an affidavit falsely or erroneously claiming that 40 percent of his or her functions are judicial? Read Request.