November 19, 2021

Texas Courts of Appeals

Ex parte Fairchild-Porche

Nos. 14-19-0045-CR and -00446-CR                     11/16/21


Is Penal Code §21.16(b) unconstitutional on its face and facially overbroad in violation of the First Amendment?


No. “[T]he statute only covers the intentional disclosure of sexually explicit material by a third party when the third party (1) obtained the material under circumstances in which the depicted person had a reasonable expectation that the image would remain private; (2) knew or was aware of but consciously disregarded a substantial and unjustifiable risk that the third party did not have effective consent of the depicted person; and (3) knowingly or recklessly identified the depicted person and caused that person harm through the disclosure.” Read opinion.

Concurrence (Spain, J.):

Because the Court of Criminal Appeals did not publish its own opinion in Ex parte Jones, No. PD-0552-18, 2021 WL 2126172 (Tex. Crim. App. May 26, 2021) (per curium) (unpublished), this court should not treat Jones as precedent and should decline to publish this opinion. Read opinion.


This case involves the prosecution of a “classic” revenge porn case under the 2017 version of the statute where two parties share intimate photos only for one to later share those photos with other people. In its analysis, the 14th Court carefully distinguishes the facts before it from the more unusual facts present in Ex Parte Jones (later reversed by the Court of Criminal Appeals) where the 12th Court of Appeals in Tyler held this version of the statute to be unconstitutional when applied to a third party who obtained copies of the intimate photos shared between romantic partners. Both this case and the CCA decision reversing Jones should be required reading before taking a revenge porn case to grand jury or trial. I would not necessarily expect the CCA to take this case up in light of dicta in Jones, despite the strongly written concurrence. 

Wood v. State

No. 02-19-00460-CR                    11/10/21


When an unlawful-possession indictment alleges one alternative statutory timeframe element under Penal Code §46.04(a)(1), but the State presents evidence at trial proving a different timeframe element, is the evidence sufficient to support the conviction?


No. Here, the defendant was indicted under the release-from-confinement option, but the State offered evidence of the defendant’s unlawfully possessing a firearm under the release-from-parole-supervision option instead. Relying on Cada v. State, 334 S.W.3d 766 (Tex. Crim. App. 2011), the court held the variance was material, and the State was required to prove the statutory element it chose to allege instead of some other alternative statutory element that it didn’t allege in the indictment. Read opinion.


This case is a good illustration of the importance of selecting your charging language carefully. The State had sufficient evidence to prove the defendant guilty of the offense of unlawful possession of a firearm by a felon but, unfortunately, the language of the indictment restricted them to a manner and means that was inconsistent with evidence available. With this decision, the 2nd COA reaches the same conclusion that their colleagues in the 13th COA did in an unpublished opinion in 2015. 

Roby v. State

No. 04-19-00889-CR                    11/10/21


Must a trial court sua sponte include an unrequested voluntary conduct instruction in the jury charge when there is some evidence that the defendant did not voluntarily pull a gun’s trigger in a murder case?


No. Because the voluntary conduct instruction is a defensive issue, the defendant must submit a request to the trial court when evidence is offered to support that issue. Additionally, in this case, the voluntary conduct defense was not implicated because the defendant did not admit to pulling the trigger. Instead, he argued the gun misfired when he caught it and contended, he never pulled the trigger. Read opinion.


This case serves as a nice reminder that while trial courts have an independent duty to charge the jury on the law applicable to the case, defensive issues are not considered law applicable to the case.

Brown v. State

No. 10-19-00254-CR                    11/10/21


Are a defendant’s separate punishments for bodily-injury assault and occlusion assault during the same criminal episode barred by double jeopardy?


No. Occlusion assault and bodily-injury assault are result-oriented offenses, and a defendant may be held criminally responsible for two or more result-of-conduct offenses, even if they occur during the same criminal episode, as long as each offense causes a different type of result. In this case, the defendant’s actions established that he impeded the complainant’s breathing and committed assaultive acts including punching, shoving, burning, and slamming the complainant during the episode. Read opinion.


The ultimate outcome likely does not come as a surprise to seasoned domestic violence prosecutors. Its analysis is consistent with established CCA precedent. Intake prosecutors will find the case helpful when making a decision about whether to charge a defendant with multiple offenses arising out of what might be perceived as a continuous course of conduct. This is probably a good time to encourage anybody who missed it to read the McCall v. State decision from September where the 3rd COA did an excellent job explaining that assault–bodily injury was not a lesser-included offense of occlusion assault.

Texas Attorney General Opinion

KP-0392                           11/15/21


Can a trial court accept an affidavit of surety to surrender a principal and require a bondsman to show cause for the surrender?


Yes. Occupations Code §1704.207(a) and Code of Criminal Procedure Art. 17.19 authorize a bond surety to surrender a principal after filing an affidavit, which among other things, states the cause for the surrender. The Court of Criminal Appeals has determined these statutory provisions contain no authority for the trial judge to refuse the surety’s affidavit to surrender a principal. Instead, the mechanism by which to challenge a surety’s reasonable cause is a principal’s contest under Occupations Code §1704.207(b). Read opinion.


The concept of a bondsman “going off bond” is not a foreign concept to many prosecutors. The AG’s opinion here won’t do much to lift the spirits of anyone whose county jail is filling up with defendants who find themselves falling behind on the payment plan that was negotiated with their bondsman. The defendant, defense attorney, and prosecutor are all capable of contesting surrenders they believe are without probable cause. The decision on whether to do so is likely a matter of policy that should be decided by the elected prosecutor.

Texas Attorney General Opinion Request

RQ-0441-KP                     11/17/21


What constitutes an economic benefit under Sec. 47.02(b)(2) of the Penal Code, assuming the players are betting for money or other things of value and all games are part of a private event?

Requested By:

Chris Turner, State Representative, and Chair, Committee on Business & Industry

Happy Thanksgiving!

In observance of Thanksgiving, case summaries will not be published on Friday, November 26th. The case summaries will resume on Friday, December 3rd. Everyone at TDCAA wishes you a happy and restful Thanksgiving!