May 15, 2015

Texas Court of Criminal Appeals

Ex parte Vela

No. WR-37,070-02     May 13, 2015


What effect does a granting a new punishment hearing have on the stacking order for punishments of existing convictions?


Granting a new punishment hearing removes the sentence from the stacking order, allowing the punishment that was stacked upon it to begin to run. If the presiding judge does not issue a new order stacking the new sentence onto existing sentences, the defendant’s sentences will run concurrently. Read opinion


The holding in this case is concerning because it may frustrate the intent on the sentencing judge. The opinion appears based on the premise that all stacking is done by a single judge. But defendants often have cases pending in different counties, different states, or in both state and federal court. The judge who resentences a defendant for one case may not think that sentence should be stacked. But that judge may not be aware of information that another judge—whose stacking order was invalidated—knew.

Maldonado v. State

No. 04-12-00693-CR  May 13, 2015


Is a single count of sexual contact subsumed by a count alleging penetration, if there is evidence of multiple incidents?


No. When there is evidence of many separate acts of both contact and penetration, a contact offense will not be factually subsumed in the penetration offense because the jury could find that the offenses occurred at different times. There is no violation of the Double Jeopardy Clause so long as there is evidence of separate acts of both contact and penetration. Read opinion

Concurrence (Keller, P. J.):

Presiding Judge Keller filed a concurring opinion based on an “elements” and “units” analysis of double jeopardy. An offense must have the same elements and units for a double jeopardy violation to occur. Because there was evidence of multiple discrete acts that occurred on different days, these are separate units of prosecution and do not implicate double jeopardy. Read concurrence 


The opinions are careful to talk about acts that occur on different days. But sexual encounters—both legal and illegal—often involve multiple separate acts of contact and penetration. We know that we cannot double-dip on a single act that results in contact incidental to penetration. Can we charge both contact and penetration from a single encounter as long as the victim articulate separate acts? That is not clear.

Tapia v. State

No. 13-12-00334-CR  May 13, 2015


Is it a violation of Due Process to revoke probation at a second revocation hearing, based on grounds that were known but not considered at the first hearing?


No. The Court held that the community supervision revocation process followed all Due Process requirements. There is no requirement that a revocation be based on evidence of a violation that occurred subsequent to an earlier hearing where probation was allowed, and the State is not required to allege all known violations in a revocation hearing or forfeit them in any future proceeding. Read opinion

Concurrence (Johnson, J.):

Judge Johnson writes to note her preference that the State should have dismissed the initial motion to revoke and filed a new motion with the additional alleged violations. Read concurrence

Dissent (Meyers, J.):

Judge Meyers dissents, believing the State has a requirement to allege any and all known violations before a revocation hearing or forfeit the right to use those violations in a subsequent hearing. Read dissent


The Court’s opinion was most likely driven by defense counsel’s transparent attempt to manipulate the revocation process. While Due Process does not require the State to allege every known violation in a motion to revoke, a defendant may be able to establish a Due Process violation if he can show the State intentionally delayed filing an allegation in order to obtain a tactical advantage in the same way they can claim a right to speedy indictment. It would be difficult to prove, but not impossible.

In re Allen

Nos. WR-82,265-01 & WR-82,265-02           May 13, 2015


Can mental retardation (aka intellectual disability) be determined in a death penalty case by means other than submission to the trial jury?


Yes. The Court upheld a trial judge’s right to grant a defendant’s motion requesting pretrial determination by the trial judge of intellectual disability; if defendant was found intellectually disabled, he would be exempt from the death penalty. The Court found that at present the law is unsettled and trial judges have discretion to decide how to determine intellectual disability including by pretrial determination, submission of a special issue to the jury, or at sentencing. Because the law is unsettled, the court of appeals was wrong to grant mandamus relief ordering the trial court to submit the issue to the trial jury. Read opinion

Concurrence (Meyers, J.):

Judge Meyers writes to address the dissents. He finds Judge Alcalá’s views on mootness to be incorrect and Judge Newell’s concern about punishment being addressed before trial as unfounded. Read concurrence 

Concurrence (Yeary, J.): 

Judge Yeary writes to outline the history of the issue and the gaps in jurisprudence since the U.S. Supreme Court declared mentally retarded defendants immune from the death penalty in Atkins v. Virginia. Read concurrence 

Dissent (Alcalá, J):

Judge Alcalá dissented on two grounds: First, because the trial court judge who granted the original motion is no longer on the bench, he believes the Court of Criminal Appeals should abate the case to back to trial court to determine if the current judge will adopt the former’s order; if he does, the mandamus proceedings should move forward, but if not, the petition would be moot. Second, assuming the Court has jurisdiction, Judge Alcalá believes the trial court lacks jurisdiction over a pretrial determination of intellectual disability due to lack of ripeness. Read dissent 

Dissent (Newell, J):

Judge Newell writes to argue that a pretrial determination of any sentencing issue is improper; the claim of intellectual disability is not ripe prior to trial. Read dissent 


The Court seems to be trying to get the attention of the Legislature regarding the continued absence of legislation to implement the now 13-year-old Atkins decision. But by allowing more than one way to litigate the issue pre- conviction, the Court may actually have eliminated any incentive for the Legislature to resolve the issue. Otherwise, the Court holds that, despite hundreds of years of Anglo-American jurisprudence dictating that juries decide issues of fact, existing law is unclear how this particular fact issue should be resolved.

State v. Cruz

No. 03-12-00728-CR  May 13, 2015


Do questions about a defendant’s name and phone number, asked in a custodial interview but not during the booking process, fall within the “booking” exception to Miranda?


No. If the questions were not asked during a booking procedure or for any other administrative purpose, then the questions constitute an interrogation and require Miranda warnings. The Court found that officers’ questions about name and phone number, while administrative-type questions, were not asked for any legitimate administrative purpose.  Additionally, given the circumstances of the case, the officers knew or should have known that the answers to the questions were likely to elicit an incriminating response. Because of this, proper Miranda warnings should have been given. Read opinion


An interesting case, but a fact-bound case as well. The Court applies two different analyses to reach its conclusion. The Court relies on plurality opinions and other state authority to reach its result. But if you look at the facts the officers’ conduct does not appear unreasonable. Officers interviewing a suspect have a basic need to determine whether they are interviewing the correct suspect. Maybe the Supreme Court should look at this case. Until then, officers and prosecutors should be more careful when relying on the booking (sometimes called book in) exception to Miranda.

Office of the Attorney General

Request from the Waller County Criminal District Attorney

KP-0016          May 11, 2015


Whether §157.901 of the Local Government Code authorizes payment of attorney’s fees for a criminal investigation that did not result in any criminal charges filed, and whether individual members of a commissioners court who were under investigation may vote to approve payment of their attorney’s fees or attorney’s fees of another member subject to the same investigation?


The Commissioner’s Court can pay a commissioner’s attorney fees to defend against a criminal investigation upon their determination it serves a public interest. Read opinion 


Open-meetings and open-records investigations just got a lot more expensive for counties.

Request from the Atacosa County Attorney

KP-0019  May 11, 2015


Whether restitution funds ordered in a criminal judgment by a statutory county court and collected by the court clerk are funds “belonging to the county” and required to be deposited in the county treasury?


No. Restitution payments are not funds “belonging to the county,” and thus they are not required to be deposited with the county treasurer or in the county treasury. Read opinion