Texas Supreme Court
Stary v. Ethridge
No. 23-0067 5/2/25
Issue:
What is the standard of proof to support a domestic violence protective order that bars parent-child contact for longer than two years?
Holding:
Clear and convincing evidence. The Court found that a lifetime protective order essentially deprives a parent of his or her fundamental right to parent, essentially acting as a termination of parental rights, and therefore, the higher standard of clear and convincing evidence (as opposed to preponderance of the evidence) applies. “Protective orders ordinarily provide short-term protection from family violence. Protective orders that ban all communication between a parent and her children for more than two years, however, present special consideration of the fundamental right to parent. Due process demands that clear and convincing evidence support such an order and an evaluation of whether prohibiting all contact between a parent and child for the duration of the order is in the child’s best interest.” Read opinion.
Commentary:
Since the Texas Supreme Court issued In re G.M. in 1979, the burden of proof required for the State to permanently terminate a person’s parental rights has been clear and convincing evidence, elevated from the preponderance-of-the-evidence standard because of the “weight and gravity” of the implications that termination would have upon the fundamental parent-child relationship involved. This opinion applies essentially the same logic as In re G.M. and extends the clear-and-convincing standard to the context of lengthier domestic-violence protective orders. If you work with parental-rights, domestic violence, or CPS cases, be aware of this opinion because it expands the quantity of evidence that you’ll need to furnish to substantiate a domestic violence, no-contact, parent-child protective order lasting longer than two years.
Texas Court of Criminal Appeals
Alkayyali v. State
No. PD-0290-23 5/7/25
Issue:
Did a jury charge in a murder case that failed to require that the defendant caused the victim’s death beyond a reasonable doubt result in egregious harm?
Holding:
Yes. By leaving out an essential element of the offense from Penal Code §19.02(b)(2) (that the defendant “intend[ed] to cause serious bodily injury and commit[ted] an act clearly dangerous to human life that cause[d] the death of an individual”), the jury charge failed to require that the State prove every contested element of murder beyond a reasonable doubt. Read opinion.
Concurrence (Yeary, J., joined by Schenck, P.J.):
The concurrence disagreed with the State’s argument that there was no egregious harm because the defendant’s chief defensive theory focused on a lack of criminal mental state rather than causation. “But even if that is an accurate assessment of the record, it remains the case that jury deliberations could have been adversely impacted by the error in the jury charge.” Read concurrence.
Dissent (Finley, J.):
“The jury-charge error in this case should not be repeated. My dissent is not intended to endorse the State’s and defense counsel’s failures. Both sides share some level of culpability. Moreover, I am hesitant to find egregious harm in a situation like this because it may incentivize future defense attorneys to not object to similar jury charge errors. Had the error been objected to, I would join the plurality opinion. However, with the facts before the Court today, I do not conclude that Appellant suffered egregious harm. Because the plurality opinion holds otherwise, I respectfully dissent.” Read dissent.
Dissent (Parker, J.):
“The plurality opinion frames the question in this case as whether egregious harm occurs if the jury charge ‘fails to require the State to prove every contested element of an offense beyond a reasonable doubt.’ But that is not the correct question in this case. Here, the jury charge in fact required the State to prove every element of the offense of murder beyond a reasonable doubt—in abstract instructions. What the jury charge failed to do was include one of the elements—causing death—for one of the theories of murder in an application paragraph. Because Appellant did not object at trial, the question is whether this omission from the application paragraph resulted in egregious harm. And the answer to that question is a resounding ‘no.’” Read dissent.
Commentary:
As you prepare for trial, it is imperative to check the charging instrument against the Penal Code or other statute proscribing the prohibited conduct to make sure that, at the least, the charging instrument includes all the essential elements of the charged offense. Then, during the jury-charge conference, compare the charging instrument to the application paragraph(s) to ensure that the jury charge tracks the charging instrument (as well as the evidence adduced at trial) and, again, contains all the necessary elements of the alleged offense. Jury-charge errors are the most common errors encountered on appeal and are often preventable by a closer inspection of both the charging instrument initially and the jury charge at trial. Although the Code of Criminal Procedure provides that the jury charge is technically the trial court’s responsibility, do all you can to thoroughly review the charging instrument and the jury charge.
Texas Courts of Appeals
Glover v. State
No. 13-23-00533-CR 5/1/25
Issue:
Is an indictment that identifies the victim as “Victim 1” overly vague and subject to being quashed?
Holding:
No. The Court rejected the defendant’s argument that the Code of Criminal Procedure requires an indictment to identify a victim by either her full name or initials. “Notably, while an indictment is required to state the name of the accused, there is no explicit statutory requirement that a victim be named,” citing CCP Art. 21.21. The Court also noted that the defendant had notice of the victim’s identity for more than a year, as the true name of “Victim 1” was “abundantly clear in the discovery materials that the State produced.” Read opinion.
Commentary:
This is a useful opinion for any prosecutor who works with cases involving any victim whose identity must (or should) be kept confidential to the extent possible, including child victims of any crime and adult victims of sex crimes. Although the defendant certainly has the right to know the identity of the victim he or she is alleged to have harmed to prepare a defense, this opinion emphasizes that victim-identification information need not be specifically listed in the charging instrument to satisfy due process and notice concerns. Rather, the required identification information can be contained in other documents, such as notices, motions, medical records, police reports, witness statements, and other materials tendered to the defense during discovery. Note, though, that if you are relying on collateral, discoverable documents to convey notice of the victim’s identity, rather than identifying the victim by name or initials in the charging instrument, be careful to document that the defense actually receives the produced discovery materials that identify the victim—such as by having defense counsel sign a written receipt or acknowledge receipt orally on the record.
Attorney General Opinion Request
RQ-0598-KP 5/2/25
Issues:
- Does Penal Code §46.15(a)(6) and (a)(7) provide affirmative statutory authority for licensed prosecutors to carry concealed firearms in government courts in the ordinary course of their duties, or is it simply a defense to criminal prosecution?
- Does a district or county court-at-law judge have the authority to completely forbid the carrying of concealed firearms by licensed prosecutors in the ordinary course of the prosecutors’ duties in the judge’s respective court?
- Does the Court Security Committee have the authority to completely forbid the carrying of concealed firearms by licensed prosecutors in all government courts in Midland County?
Requested by:
District Attorney Glenn Harwood, Midland County
2025 Code Books Available for Preorder
While the legislative session is not over yet, TDCAA’s publications department is already preparing new editions of all your favorite books. These books—including the annotated Criminal Laws of Texas, the spiral-bound Code of Criminal Procedure and Penal Code, and the Legislative Update—are available for preorder here. Books will be shipped later this summer, but you can reserve your copies today. To avoid delay in shipping books that are already in stock, please place separate orders for pre-order books and books that are in stock. Prosecutor offices, note that TDCAA’s TxDOT grant is once again allowing TDCAA to provide free copies of the 2025–27 edition of Transportation Code Crimes to all Texas prosecutor offices. These books will be shipped in early September.