May 1, 2015

Texas Court of Criminal Appeals

Absalon v. State

No. PD-0340-14      4/29/15


Is a defendant’s participation in a substance-abuse program as a condition of probation considered voluntary, thereby making any statements he made in the course of treatment inadmissible under CCP art. 38.101 and Rule of Evidence 509(b)?


No. Participation in a substance-abuse program as part of a plea bargain for a probated sentence is not voluntary for purposes of Rule 509(b) and art. 38.101, and therefore testimony of other participants in the program who heard the defendant admit to murder are admissible. Read opinion 


An interesting opinion. The ruling should be viewed as an incentive to seek treatment before getting caught up in the criminal justice system. Detractors will say it might undermine the efficacy of court-ordered treatment.

State v. Le

No. PD-0605-14    4/29/15


Did the search warrant affidavit for the defendant’s grow-house contain probable cause after excising the results of a dog sniff conducted in violation of Florida v. Jardines?


Yes.  The warrantless dog sniff in this case “was not nearly as integral to the justification for the search warrant as it was in McClintock [v. State, 444 S.W.3d 15 (Tex. Crim. App. 2014)] or even Jardines.”   Read opinion

Dissent (Meyers, J.):

The dissent would find that without the dog alert, the remaining evidence does not establish probable cause.  Read opinion

Dissent (Alcala, J.):

The dissent identifies six problems with the search warrant, including the dog-sniff evidence, staleness of information in the affidavit, and the officer’s statements about characteristics of a marijuana-growing business. Read opinion


Good police work pays off. These investigators did more than the minimum amount of work, so when some of their work was knocked out by an unexpected court decision, they had enough information in their warrant affidavit to sustain the search. The supporting information for the citizen complainant was good work but also easily done—the defense always wants to fuss about unnamed sources. Staleness concerns of the dissent are misplaced because this is a grow operation rather than mere possession—the plants take time to mature and thus are less likely to wander off while officers conduct their investigation. Takeaways: The experienced human nose is an important law enforcement tool, and always strive for more than the minimum in your warrants.

Ex parte Alvarez

No. WR-62,426-04 (dismissing subsequent capital writ)

Concurrence (Yeary, J.):

The Court should overrule Ex parte Graves and consider claims of ineffective assistance of counsel in an initial capital writ in a first subsequent capital writ. Read Opinion


Judge Yeary offers a reasoned basis for the Court to overrule a controversial capital writ precedent. The votes in this case indicate there are four judges now on the Court who support this view. Although allowing death penalty defendants to challenge their first writ lawyer would delay final justice in one way, could it speed up other steps, perhaps in federal court? Stay tuned.

Texas Courts of Appeal

Davenport v. State

No. 07-14-00279-CR      4/27/15


Can “intense light” qualify as a deadly weapon when it is shone in the eyes of officers, causing them to crash their car?


Yes. There is no requirement that a deadly weapon be an object. “[W]e believe that the definition of a deadly weapon, as contained in [Penal Code §](a)(17)(B), means exactly what it says, that anything in the manner of its use or intended use that is capable of causing serious bodily injury or death is a deadly weapon.” Read Opinion


Presumably, had the State argued the laser was the deadly weapon, the defense would have argued it was the light, not the device, that would cause serious bodily injury. This opinion is consistent with other opinions that fire can be used as a deadly weapon.

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