May 25, 2018

Court of Criminal Appeals

Oliva v. State

No. PD-0398-17      5/23/18


Is the existence of a prior conviction in a DWI-second case an element of the offense that must be proved during guilt-innocence or a punishment issue?


A punishment issue. Although a prosecution for felony DWI requires two prior convictions to be proved during guilt-innocence, the existence of one prior conviction for misdemeanor DWI (elevating the second DWI offense from a Class B to a Class A misdemeanor under Penal Code §49.09(a)) is a punishment issue. Read opinion.

Concurrence (Richardson, J.):

The “DWI statute is ambiguous on this issue, and the Legislature has not clarified whether a prior conviction that changes the degree of the DWI offense constitutes an ‘element’ of the enhanced offense or serves merely as a punishment enhancement. Because I ultimately agree with the majority that there are policy considerations in preventing prejudice that would arise from informing the jury of extraneous offenses before a finding of guilt, respectfully, I concur in the result.” Read opinion.

Dissent (Keasler, J., joined by Yeary, J.):

The dissent contends that the Court’s decision conflicts with Calton v. State, 176 S.W.3d 231 (Tex. Crim. App. 2005). “I think that our jurisprudence would be better served, and the lower courts’ future interpretive endeavors made easier, by adopting a bright-line rule: Absent clearly expressed legislative intent to the contrary, when a penal provision states that proof of a particular fact affects the degree of offense (e.g., ‘is a Class A misdemeanor’), rather than just the applicable punishment range (‘is punishable as a Class A misdemeanor’), that fact must be proven in the guilt phase of trial. This rule, applied to the language of Penal Code Section 49.09(a), means that a defendant’s single prior DWI conviction must be proven in the guilt phase of a second-offense DWI trial.” Read opinion.


This opinion ends the split of authority as to when the jury hears about the prior offense in DWI-second offense prosecutions. But, given the Court’s discussion of the issue, be prepared for litigation regarding when prior convictions are presented in other offenses. It seems the Legislature and the courts are not always consistent in the language they use to enact and construe criminal statutes targeting repeat offenders. Also interesting is that the majority spent multiple pages in a detailed response to the dissenting judges—those responses are typically measured in paragraphs or footnotes.

Miller v. State

No. PD-0891-15         5/23/18


What is the standard for evaluating ineffective assistance of counsel in cases where the defendant waived a jury trial in favor of a bench trial?


By demonstrating that the defendant would have opted for a jury if his attorney had correctly advised him that he was ineligible for probation from the trial court. On rehearing, the Court concludes that the defendant does not have to show that the likely outcome of the jury trial he waived would have been more favorable than the trial before the court. Read opinion.

Concurrence (Newell, J.; joined by Walker, J.):

“Appellant faced a choice between the certainty that the judge could not award him probation and the almost certainty that a jury would not award him probation. As in Lee [v. United States, 137 S.Ct. 1958 (2017)], that ‘almost’ is enough to establish prejudice. As Professors Dix and Schmolesky have observed of our original opinion in this case, ‘In light of Lee, the plurality in Miller is apparently wrong.’ I agree. And it is better to fix the error now on rehearing.” Read opinion.

Dissent (Keller, P.J.):

“[E]ven if the deprivation of a jury trial that was alleged to have occurred here were structural, the usual prejudice analysis under Strickland might still be appropriate. And even if a deviation from the usual prejudice analysis were warranted, it might be warranted only for punishment—what the defendant says he wanted the jury for.” Read opinion.

Dissent (Alcala, J.; joined by Keller, P.J. and Keasler, J.):

“Should this Court greatly expand upon Supreme Court precedent describing the law for claims of ineffective assistance of counsel so as to permit a defendant to obtain a new trial when an exhaustive review of the evidence introduced in the guilt and punishment phases of his trial shows that the outcome of his case was not prejudiced by his attorney’s complained-of bad advice? I respectfully disagree with this Court’s majority opinion that appears to answer this question ‘yes.’ Rather than expanding a defendant’s federal constitutional right to effective counsel in a manner that goes beyond the parameters set forth by the Supreme Court, I would apply that Court’s precedent in Strickland v. Washington, 466 U.S. 668 (1984). Read opinion.


The opinion follows Lee and opens up new avenues of attack in post-conviction litigation in Texas. This child molester will likely receive a new trial on remand, and the lawyer who gave the bad advice may never be sanctioned. No one disputes that the defendant is very unlikely to do better in a jury trial.

Flores v. State

No. PD-1189-15       5/23/18


Does the absence of 30 minutes of recording, along with evidence that multiple statements between the defendant and officers were either lost or not recorded, make recordings of the rest of the interview inadmissible under CCP Art. 38.22, §3(a)(3)?


Yes. In an unpublished opinion, the plurality concluded that the defendant’s statement, recorded during custodial interrogation, should not have been admitted because at least one of the requirements of Art. 38.22, §3(a) was not met due to the absence of approximately 30 minutes of recordings, which, based on the facts of this case, made admission of the rest of the recorded statement inaccurate. Read opinion.

Dissent (Yeary, J.; Keller, P.J. and Keasler, J. joining):

“Suppose an officer begins to interview a suspect, but shortly into the interview he realizes that the batteries in his recording device have died. He immediately ceases the interview, replaces the batteries, cautions the suspect again in compliance with both Miranda and Article 38.22 of the Code of Criminal Procedure, and re-starts the interview from scratch. Suppose the suspect then repeats whatever he had said before, with no material variation, and then adds to it. Is the entire interview—including everything that came after the officer replaced the batteries and re-warned the suspect—inadmissible because the first part was not fully recorded, however inadvertently, as required by Article 38.22? That seems to be what the plurality holds today. After all, the recorded interview that the State ultimately offers into evidence in my hypothetical is not—indeed, cannot possibly be—complete, and therefore ‘accurate,’ in the sense that the plurality adopts today.” Read opinion.


The best that can be said for this unpublished reversal of an unpublished lower court opinion is that unpublished CCA opinions are not citable authorities. See Tex. R. App. P. 77.3. The plurality holding on preservation is quite problematic because it conflates the reason for objecting—there were unrecorded parts of the interrogation—with the basis for objection—optional completeness, spoliation, etc. Furthermore, on the merits, the plurality conflates completeness of a recording with accuracy. But what was recorded appears to be accurate. The defendant testified at trial, which means that, even if the recordings were inadmissible in the State’s case-in-chief, they were usable for impeachment. See Tex. Code Crim. Proc. Art. 38.22, §5. But the plurality treats the State’s use of the recording to impeach the defendant as if it were wrong. Recent changes to the Code would not change the outcome here—partial recordings of the interrogation may be permissible under Article 2.32, but that doesn’t change what is required for admissibility of the statement itself.

Office of the Attorney General

Opinion KP-0207          5/17/18


Is an employee of a district attorney’s office eligible to execute and serve a subpoena under CCP Art. 24.01(b)(2) if the employee is not, at the time of issuance, involved in the proceeding for which the appearance is sought?


Yes. Art. 24.01(b)(2) allows service of a subpoena in a criminal matter by an attorney or other employee of a district attorney’s office who, at the time of issuance, is not involved in the prosecution of the case in any capacity. Read opinion.


Finally, something useful for the summer interns to do.

Opinion KP-0200      5/17/18


May a prosecutor’s office use civil asset forfeiture funds to buy property insurance pending appeal?


Yes. A court would likely conclude that an attorney representing the State may use civil asset forfeiture funds accrued under Code of Criminal Procedure Art. 59.06(c)(1) to purchase property insurance protecting real property that is the subject of an appeal from a forfeiture judgment under Art. 59.05(e). The AG also noted, “So long as the activity of the attorney ‘relates to the preservation, enforcement, or administration’ of a state law, the fact that a particular expenditure is omitted from the examples listed in article 59.06(d-4) is not dispositive.” Read opinion.


Even the political opponents of asset forfeiture would surely agree this is a good use of forfeiture funds.

Opinion KP-0203       5/17/18


What are the limits of a commissioners court’s power to collect or delegate collection of money owed to the county under Code of Criminal Procedure Chapter 103?


Code of Criminal Procedure Art. 103.003(b-1) authorizes a county commissioners court to collect amounts payable under Title 2 of the CCP independently of the officials listed in Art. 103.003(a) (which includes elected prosecutors, clerks, sheriffs, constables, and JPs). A court would likely conclude that Art. 103.003(b-1) authorizes a commissioners court to create a county department to assist the commissioners court to collect these amounts owed. A court also would likely conclude that a commissioners court may contract with a collections firm, permitting the firm to collect payables into its own account, retain the additional collections fee, and deposit county money with the county treasurer, provided that the firm does so within the time permitted by statute. Read opinion.


The collections blood-feud between commissioners and other county officials continues unabated.

Opinion KP-0206        5/17/18


Can a magistrate designate a specific peace officer or law enforcement agency to execute an emergency detention warrant under Health & Safety Code §573.012(d)?


A magistrate may direct an emergency detention warrant issued under §573.012(d) to any on-duty peace officer listed in Code of Criminal Procedure Art. 2.12, regardless of the location within the county of the person who is the subject of the warrant. An officer executing an emergency detention warrant has a duty to ensure the transport of a person subject to the warrant to an appropriate facility pursuant to §573.012(e). Health & Safety Code §573.012(d) contains no jurisdictional element that would determine whether municipal or county law enforcement has the responsibility for transporting a person to an appropriate facility under §573.012(e). A peace officer refusing to transport a person to an appropriate facility under that statute is liable for contempt. The contempt action could likely be brought by a court having specific jurisdiction over mental health proceedings. Read opinion.


More small-government not-my-job finger-pointing. Peace officers won’t like how this turned out.


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Recent changes to to forensics accreditation requirements:

The Texas Forensic Science Commission has adopted amendments to 37 Tex. Admin. Code §651.5 and §651.7, which went 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: