May 7, 2021

Texas Court of Criminal Appeals

Spielbauer v. State

No. PD-0245-20           5/5/21

Issue:

Can a trial court dismiss a potential juror for cause under CCP Art. 35.16(a)(10) based solely on answers to a juror questionnaire?

Holding:

No. The Court held that “[q]uestionnaires answered outside of voir dire are not part of formal voir dire” and “[b]y themselves questionnaires do not support a challenge for cause.” A trial court can also ask members of the jury panel about their answers on questionnaires. Read opinion.

Commentary:

This is an important ruling. The fight at trial was whether the jurors were disqualified based on their questionnaire responses or could be questioned further. The trial court allowed further questioning of the jurors, some of whom changed their responses based on questioning. The lesson, then, is that advocates must follow up on the questionnaire responses with the juror in order to prove up a challenge for cause. This case is also important because it solidifies the body of case law that allows the Appellee—here, the State—to make new appellate arguments for the first time in a motion for rehearing.

Texas Courts of Appeals

Balderas v. State

No. 01-20-00174-CR               4/29/21

Issue:

Must a search warrant for a blood specimen expressly authorize forensic analysis or chemical testing?

Holding: 

No. Unlike Martinez, in which the Court of Criminal Appeals held there was an expectation of privacy in blood drawn for medical purposes, in this case, the defendant’s blood was drawn through a valid warrant related to an intoxicated-driving offense. “That the search warrant failed to provide for the analysis of [the] appellant’s blood specimen expressly does not change the analysis.” Forensic analysis and chemical testing of the blood sample were “the very ‘purpose of the blood extraction.’” Read opinion.

Commentary:

This argument was rejected in Crider v. State, 607 S.W.3d 305 (Tex. Crim. App. 2020), cert. denied, 141 S. Ct. 1384 (2021). Because of the lagging nature of criminal appeals and the pervasiveness of this claim we will probably continue to see more opinions on this point.

Templeton v. State

No. 11-19-00192-CR               4/30/21

Issue:

Are statements and admissions made by a defendant during a “butt-dial” phone call admissible under the statement-against-interest exception to the hearsay rule?

Holding:

Yes. The defendant’s statements subjected him to criminal liability, he realized this risk, and there were sufficient corroborating circumstances that established the statement was trustworthy. However, the Court held that “the admissibility of the statements and admissions made by [the defendant] during the ‘butt-dial’ phone call [were] more akin to the requirements of … the admission of a party-opponent rule.” Read opinion.

Commentary:

“But, but, I didn’t mean to call them…” With new technology comes new ways for people to incriminate themselves.

State v. Negrete

No. 01-19-00357-CR               5/4/21

Issue:

Did a defendant properly invoke his right to counsel during an interrogation when he stated, “I don’t want to snitch without a lawyer”?

Holding:

Yes. In affirming the trial court’s order granting a motion to suppress a videotaped confession, the Court disagreed with the State that the defendant’s statement was conditional upon “snitching” and the word “snitch” was ambiguous. As a result, the Court held the “statement was an unambiguous and unequivocal invocation of his right to counsel. …” Read opinion.

Commentary:

The State should seek discretionary review in this case. The Court misstates the holding of a leading Supreme Court case on this issue and misses a clear distinction between this case and State v. Gobert, 275 S.W.3d 888 (Tex. Crim. App. 2009). That said, when interrogators encounter equivocal or ambiguous references to lawyers during an interrogation the better approach is to clarify with the suspect whether he is invoking his rights. See Davis v. United States, 512 U.S. 452 (1994) (“Maybe I should talk to a lawyer” was not an unambiguous invocation of right to counsel, interrogators clarified after the statement that he wanted to speak with them rather than have lawyer).

Texas Attorney General Opinion

KP-0369           5/3/21

Issue:

Does simultaneous service as county sheriff and municipal fire marshal violate Art. XVI, §40 of the Texas Constitution or the common-law doctrine of incompatibility?

Conclusion:

No. “[A] fire marshal does not exercise his or her functions ‘largely independent of the control of others,’ and therefore the position does not constitute an ‘office’ under … the Constitution. … [L]ike the constitutional provision, the common-law doctrine ‘applies only when both positions are public offices.’” As such, “[a] court would likely conclude that neither the dual-officeholding prohibition … of the Texas Constitution nor the common-law doctrine of incompatibility would prohibit [a] [s]heriff from simultaneously serving as the fire marshal. …”  Read opinion.