May 6, 2016

Court of Criminal Appeals

Ex parte Valdez

WR-82,807-11                    5/4/16


Is filing an original application for a writ of habeas corpus in the Court of Criminal Appeals the proper method to obtain an out-of-time petition for discretionary review in a misdemeanor case?


No, relief must first be sought at the trial court level. While the Court of Criminal Appeals has the authority to issue writs in this case, it does not exercise original habeas jurisdiction except in extraordinary cases. A trial court, including a county court, that has habeas jurisdiction also has the authority to grant an out-of-time appeal or petition for discretionary review, and the writ should first be filed there. Read.

Concurrence (Keller, P.J.):

Presiding Judge Keller wrote separately to address whether Code of Criminal Procedure Art. 11.072 would be an available remedy to request an out-of-time petition for discretionary review. She found that it is not, and instead, the proper remedy is to file a “constitutional” writ application in the trial court. Read.

Concurrence (Richardson, J.):

Judge Richardson disagreed with Judge Keller and would find that a “constitutional” writ is not necessary; a claim for relief in an out-of-time petition for discretionary review when the defendant is placed on community supervision can be filed under Code of Criminal Procedure Art. 11.072. Read.

Dissent (Johnson, J.):

Judge Johnson dissented because she does not believe a trial court has the authority, even through a writ of habeas corpus, to grant relief from administrative rules and regulations such as the time limits for filing a petition for discretionary review. Read.


This decision is mainly of interest to prosecutors handling post-conviction matters. Make sure to include a clear written order laying out why relief is being granted and establishing a timeline for the defendant to file the PDR (or notice of appeal) so that the writ relief granted by the trial court does not impair the finality of the underlying conviction. The CCA regularly grants out-of-time appeals and PDRs—look at the orders they use for guidance.

In re Solis-Gonzalez

No. WR-82,831-01            5/4/16


Does a trial court have discretion to determine when all necessary forensic testing of biological material has been performed in a capital murder prosecution?

Holding (per curiam):

Yes. Code of Criminal Procedure Art. 38.43 allows that if the State and defense do not agree as to what biological materials gathered in the investigation of a capital murder constitute biological evidence and must be tested, the court may hold a hearing to determine the issue. In this case it was appropriate for the trial court to rule that after a large amount of evidence had been tested according to the statute and the defense had no legal reason that supported more testing, there had been substantial compliance with the statute and there was no reason to further delay a trial for more forensic testing. Read.


The Court reaches a pragmatic answer to a problem created by a poorly conceived solution to a different and misunderstood problem. The opinion clarifies that courts presiding over death penalty cases need not order DNA testing of every single biological item in a crime scene. To hold otherwise would simply encourage further gamesmanship in capital cases. Prosecutors will help themselves by constantly reminding the court (and observers) that the evidence in question must fit into the statutory definition of biological evidence and must either inculpate or exonerate. The other side usually wants to show only that another person was present—that does not fit within the scheme enacted by the legislature.

Texas Courts of Appeals

Burnett v. State (11th COA)

No. 11-14-00147-CR        4/29/16


Was it error for the trial court to include the complete definition of intoxication in the jury charge when there was no evidence that the defendant was intoxicated due to “drugs, a controlled substance, or a combination of those or any other substance”?


Yes. Because there was no competent testimony that the defendant was intoxicated due to drugs or another controlled substance, only the alcohol portion of the statutory definition was relevant and the court erred in including the entire definition in the definition and application section of the jury charge. Read.


The testimony in this case was limited to the defendant having some white pills and a blue pill in his pocket and that the white pills may have been hydrocodone. The officer was not a DRE, he had no training in detecting intoxication due to drugs, and there was no evidence the defendant had ingested hydrocode or the pills. Thus, according to the court, there was no competent evidence to support submission of the theory of intoxication due to drugs.

Davis v. State (2nd COA)

No. 02-13-00468-CR        4/28/16


Does “forced labor or services” in Penal Code §20A.02(1)– (5) include “sexual conduct”?


No, under Penal Code §20A.01(2) “forced labor or services” specifically excludes sexual conduct. In this case, because the State specifically alleged that the defendant committed trafficking by requiring the victim to “engage in ‘FORCED LABOR OR SERVICES, TO WIT: SEXUAL CONDUCT,’” the indictment is invalid. Additionally, because the State specifically pled only one element of the trafficking statute, it may not rely on alternate methods of committing the offense and none were proven by the evidence at trial. Read.


Here, the court of appeals issues a rare acquittal on appeal. The defendant raped a girl, then tried to pimp her out to a neighbor and some patrons at a bar. The neighbor and bar patrons did not take him up on his offer, however, and a bystander rescued her from the situation. Trafficking for sexual purposes requires that the victim engage in sexual conduct. Thus, those provisions would not support a charge in this case. The forced labor provisions, which apply to tracking with the intent the victim be placed into forced labor (rather than engaging in forced labor), specifically exclude sexual conduct. This appears to be an unintended result of legislative changes in 2011. Interestingly, the first appellate lawyer on the case filed an Anders brief.

Marcopoulos v. State (1st COA)

No. 01-15-00317-CR        4/14/16


Was the State allowed to search the defendant’s truck without a warrant following a traffic violation and arrest?


Yes, based on the automobile exception to the warrant requirement. Instead of validating this search based on the inventory exception to the warrant requirement, this court based its decision on the automobile exception – that law enforcement may conduct a warrantless search of a vehicle if it is readily mobile and there is probable cause to believe it contains contraband. The probable cause in this case was based on the defendant’s presence at a bar known for narcotics sales and “furtive gestures” he made after the police car began following him. Read.

Concurrence (Radack, C.J.):

Chief Justice Radack concurred in the judgment but would not have found standing for the defendant to challenge the search because he provided no evidence of ownership or legitimate possession of the vehicle. In her view, merely driving a car is not sufficient to show a legitimate expectation of privacy in it. Read.

Dissent (Keyes, J.):

Justice Keyes dissented because she does not believe either the search incident arrest exception, the inventory search exception, or the automobile exception to the warrant requirement applied to this case. Read.


Probable cause is a pretty low standard of proof. These facts just clear the bar.

Office of the Attorney General

Letter from the Hudspeth County Attorney

No. KP-0079       5/2/16


What is the authority of the county auditor regarding the oversight of funds maintained by the county sheriff?


While the county sheriff has authority to maintain certain funds outside of the county treasury, these funds are still subject to oversight and audit by the county auditor. In large counties it is possible for the county auditor to require his or her countersignature in addition to that of the sheriff when withdrawing funds from the sheriff’s accounts, but in counties with a population less than 190,000, unless otherwise provided for by statute, there is no authority to require an auditor’s signature on sheriff’s funds held outside the county treasury. Read.

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