Texas Court of Criminal Appeals
Collins v. State
No. PD-0452-25 11/12/26
Issue:
Does a deadly weapon finding require a collateral felony other than unlawful possession of a firearm?
Holding:
Yes. The defendant and his nephew repeatedly fired a gun in the direction of two parks one evening. He was convicted of unlawful possession of a firearm by a felon, and the jury made a deadly weapon finding. The Court reversed and remanded for new punishment, finding that while the defendant possessed a deadly weapon, firing the gun “did not increase [the defendant’s] success or chances for success in unlawfully possessing a deadly weapon. While [the defendant] certainly ‘employed’ a deadly weapon … as envisioned under the first requirements of Tyra [v. State, 897 S.W.2d 796 (Tex. Crim. App. 1995), the defendant] did not facilitate the associated felony of unlawful possession.” The Court also noted that while firing the gun in the direction of a public park was potentially chargeable as deadly conduct, the State did not “pursue this potential avenue of prosecution.” Read opinion.
Dissent (Yeary, J., joined by Keel, Finley, and Parker, JJ.):
“Today, a plurality of this Court decides that [the defendant] did not ‘use or exhibit’ a deadly weapon ‘during the commission of a felony offense’ when he pulled the trigger on a firearm 20 times while unlawfully possessing the firearm. … Because the plurality ignores the text of [Code of Criminal Procedure Art. 42A.054(b)], preferring instead its own formulation, I respectfully dissent.” Read dissent.
Dissent (Parker, J., joined by Keel and Finley, JJ.):
“Does the evidence support a deadly weapon finding when it is shown that, during the course of a felony offense of illegally possessing a firearm, the defendant intentionally fired that firearm? I would answer that question ‘yes,’ even if the defendant committed no other felony in the case, because the defendant literally ‘used’ the deadly weapon during the course of possessing it when he intentionally fired it.” Read dissent.
Commentary:
Although shooting a firearm ordinarily would constitute “using or exhibiting” the firearm, what the majority opinion found missing in this particular case, with this specific offense, was: 1) any evidence that there were people present and in harm’s way in either of the two parks when and where the defendant fired the gun (i.e., evidence that the defendant also committed the separate felony offense of deadly conduct), and 2) evidence that the defendant committed any other felony offense aside from unlawfully possessing the gun.
While this opinion should not impact deadly weapon findings in other cases involving other offenses, where the defendant’s use or exhibition of a firearm as a deadly weapon is already separate and distinct from the defendant’s unlawful possession of that firearm, prosecutors with pending cases where the defendants are charged with the unlawful possession of a firearm must be aware of the Court’s holding here if they seek to submit a special deadly-weapon issue to the jury.
Hammons v. State
No. PD-0574-25 11/12/26
Issue:
Has the defense waived a point of error on direct appeal if it fails to brief harm?
Holding:
No. In an unpublished opinion, the Court held that “the answer to today’s question is simple—[the defendant] was not required to brief harm. And to dispel any future confusion, neither party has the duty to brief non-constitutional harm. Harm analysis is a systemic requirement that the reviewing court must conduct in light of the record.” Read opinion.
Commentary:
This opinion provides the other bookend to the CCA’s previous opinion in Smith v. State, 726 S.W.3d 466 (Tex. Crim. App. 2025), in which the Court held that appellate courts have an independent obligation to conduct a harm analysis, regardless of whether the error at issue is non-constitutional or constitutional in nature, even if the State does not brief harm.
To be clear, the Rules of Appellate Procedure require both parties to adequately brief their points of error and responses, and the Court strongly recommends that the parties conduct harm analyses as part of their briefing. However, this pair of opinions clearly establishes that, like with other systemic requirements (e.g., jurisdiction, preservation of error), an appellate court must still address harm on its own even if one party (or both) declines to do so.
Texas Courts of Appeals
Roberts v. State
No. 14-25-00061-CR 11/3/26
Issue:
What is the constitutional standard for the search of a visitor who enters a correctional facility?
Holding:
Individualized reasonable suspicion. The defendant (who was representing his brother) visited the detention center where the brother was held. The entrance of the facility displayed a sign stating that all persons and vehicles were subject to be searched at any time while on the detention center property. Staff of the facility noted that after three of the defendant’s prior visits with his brother, the brother appeared lethargic and intoxicated, and they suspected the defendant was bringing contraband into the facility and giving it to his incarcerated brother. At his next visit, facility officers asked whether the defendant was carrying any prohibited items. After a discussion, they searched him and found money, fentanyl, and alprazolam. The defendant was charged with possessing a controlled substance in a correctional facility under Penal Code §38.11(a)(1); he filed a motion to suppress, arguing that the officers lacked probable cause or exigent circumstances to justify a warrantless search and could not rely solely on general jail policies or signage to authorize the search of an attorney visiting a client. The Court noted that while the U.S. Supreme Court has not specifically addressed what constitutional standard applies for searching a visitor to a correctional facility, several federal circuit courts have concluded that a visitor who enters a correctional facility has a diminished expectation of privacy and can expect to be searched. “Balancing the degree of the intrusion against the governmental interests justifying the search, we conclude that the search was reasonable. It occurred inside a secure correctional facility, was directed toward a visitor whom officers reasonably suspected of possessing contraband in the facility, and remained reasonably tailored to locating the suspected contraband without employing the more intrusive procedures characteristic of a strip search.” Read opinion.
Commentary:
Although the appellate court wades into novel legal territory, the court carefully considers relevant federal and state caselaw and merely extends it one step further to apply it to these particular circumstances, concluding that a visitor inside a correctional facility has a higher expectation of privacy than an inmate of the facility, but less than a person wholly outside the facility. Because the appellate court’s opinion is thorough and well-reasoned and does not depart from existing jurisprudence, it should withstand further challenge in the CCA and beyond.
King v. State
No. 07-26-00007-CR 11/9/26
Issue:
If a certificate of analysis signed by an analyst from the DPS crime lab fails to include the analyst’s “educational background, training, and experience” and describe “the tests or procedures conducted by the analyst” as required by Code of Criminal Procedure Art. 38.41, §3, can the analyst be considered an expert witness?
Holding:
Yes. “The certificate here is not conclusory on its face. It identifies the analyst as a forensic scientist employed by an accredited crime laboratory. It lists the two methods by which she tested the substance: Instrumental Analysis by Fourier Transform Infrared Spectroscopy and Chemical Testing by Color Tests. It reports the result of that testing: The substance contained ‘Methamphetamine HCl.’ According to the certificate and analysis report, the analyst’s opinion rests on identified scientific testing performed by her in the course of her duties at an accredited laboratory. The analyst’s missing qualifications do not render the opinion baseless. The lack of this information would fall under a Rule 702 objection.” The Court also noted that Code of Criminal Procedure Art. 38.41 gives defendants the means to test the information from a certificate of analysis before trial by objecting and requiring the analyst to appear. “Having invoked neither, [the defendant] cannot obtain through a sufficiency challenge the exclusion he never sought. Once admitted, the weight to be given the analyst’s opinion, including any doubts about the thoroughness of the certificate, was for the jury.” Read opinion.
Commentary:
The defendant here did not object to the defects in the Art. 38.41 certificate of analysis 10 days before trial, as Art. 38.41, §4 requires; he did not file a motion to suppress the certificate; and he did not object to the trial court’s admission of the certificate at trial. Because of that inaction, the defendant would have forfeited any challenge to the trial court’s admission of the certificate on appeal. However, the defendant sidestepped that procedural bar by framing his complaints about the certificate as a challenge to the sufficiency of the evidence, which requires no trial objection to proceed on appeal. Although the appellate court acknowledged that the defendant’s approach is unusual, it indulged it because the defendant “ha[d] not forfeited his due process rights to insist on proof beyond a reasonable doubt.” Nevertheless, the appellate court rightfully rejected the defendant’s sufficiency challenge, helpfully reminding us along the way that all that is needed for an Art. 38.41 certificate of analysis to be valid is substantial compliance—not exact precision—with the substantive requirements of Art. 38.41.
Attorney General Opinion Request
No. RQ-0664-KP 12/12/26
Issue:
May a commissioners court adopt a policy governing the use of vehicles assigned to elected county officials? Read opinion request.
Requested by:
Edmund J. Zielinski, Cooke County Attorney