May 11, 2018

Texas Court of Criminal Appeals

Estes v. State

No. PD-0429-16                5/9/18


Does Penal Code §22.011(f), the “bigamy” enhancement, violate the Due Process and Equal Protection clauses of the U.S. and Texas Constitutions by punishing married defendants more harshly than unmarried ones?


No. The State has a legitimate interest in deterring, preventing, and punishing the sexual exploitation of children. The bigamy enhancement provision to a charge of sexual assault is rationally related to that State interest in protecting children. There may rationally be a public perception that married people are more trustworthy, especially in regard to children. The Constitution does not preclude the Legislature from instituting a higher degree of punishment for defendants who abuse that trust to sexually assault a child. Read opinion.

Concurrence and Dissent (Newell, J.):

“Appellant argues that this statute differentiates between married and unmarried sex offenders in violation of the Equal Protection Clause. Appellant is incorrect. The classification at issue in this statute is rationally related to enforcing the prohibition against bigamy and sexual assault committed pursuant to a bigamous relationship. As such, it does not violate the Equal Protection Clause. Consequently, I concur in the Court’s conclusion, though I disagree with its reasoning. However, because the Court chooses to remand the case to the court of appeals rather than address the appropriate standard of review for Appellant’s equal protection claim, I respectfully dissent.” Read opinion.


The dispute between the majority and dissent is whether the claim should be addressed as an equal protection claim or an as-applied challenge. Eight judges agree that the “bigamy” provision in §22.011 is not unconstitutional because a married defendant who commits the offense is eligible for a higher degree of punishment. Both opinions may prove useful when addressing other constitutional challenges.

Ex parte Garcia

No. PD-0804-17                5/9/18


Is a claim that a defense attorney gave affirmative misadvice regarding possible deportation barred as a non-retroactive Padilla claim?


No. Although in this case the topic of the misadvice was on immigration consequences, the defendant’s claim differs from a Padilla claim because the defense attorney did not have an affirmative duty to advise the defendant on deportation. By offering immigration advice, the defense attorney undertook the obligation to state the law correctly. This is similar to claims of misadvice on probation or parole eligibility and should be treated as such. Read opinion.


This case allows defendants whose lawyers gave them bad advice about immigration prior to Padilla to challenge their convictions even though Padilla does not apply retroactively. The opinion gives a clear and concise explanation for the rule. It will still be the petitioner’s burden to prove he received bad immigration advice.

Texas Courts of Appeals

Garcia v. State

No. 11-16-00314-CR        4/30/18


May a defendant collaterally attack an original conviction in an appeal from the revocation of community supervision with a claim that the sentence is illegal?


Yes. Generally, collateral attacks on the original conviction are not allowed in an appeal from revocation proceedings. However, the “void judgment” exception allows claims that would render the original judgment of conviction void. Here, the defendant pled guilty to a charge that was improperly enhanced from a state jail felony to a third-degree felony and was given a 10-year probated sentence. The defendant could attack the underlying conviction in his appeal from revocation because the 10-year sentence was outside the range of punishment for a state jail felony. The improper enhancement is an illegal sentence that renders the judgment void because there is no other conviction that could support the punishment range in which the defendant was sentenced. Read opinion.


The opinion does a good job explaining why this defendant gets to complain about his sentence years down the road and get a new trial while other defendants might not.

Diaz v. State

No. 07-17-00376-CR        5/4/18


Must the jury unanimously agree on which two or more protective order violations the defendant committed to convict him of repeated violations of a protective order under Penal Code §25.072?


No. Penal Code §25.072 criminalizes the repeated violation of protective orders or conditions of bond in certain cases. The charge must allege that the defendant committed two or more of the violations enumerated in Penal Code §25.07 within a 12-month period. The individual violations alleged are different manner and means of committing the same crime, which does not require jury unanimity. The jury must unanimously agree only that the defendant committed two or more acts violating a protective order within the specified time period. Read opinion.


The court decides this case by referencing cases conducting a similar analysis under the continuous sexual abuse statute.


The Texas Forensic Science Commission has adopted amendments to 37 Tex. Admin. Code §651.5 and §651.7, which go into effect May 24. The changes add “crime scene reconstruction including bloodstain pattern analysis and trajectory determination” to the list of forensic disciplines exempt from accreditation requirements under Art. 38.35 of the Texas Code of Criminal Procedure. The change was needed to provide clarity to previously existing rules adopted by DPS. Under the previous rules, some courts were excluding bloodstain pattern analysis based on Art. 38.35, and some courts were admitting the same type of evidence. The accreditation exemption for bloodstain pattern analysis is intended to be temporary (for 15 months) to allow entities that perform this type of analysis the opportunity to obtain accreditation. To view the Commission’s hearing on bloodstain pattern analysis, see:



The OAG’s Human Trafficking and Transnational/Organized Crime Section has some information on obtaining records from available here.

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]