November 2, 2018

Texas Court of Criminal Appeals

State v. Waters

No. PD-0792-17                 10/31/18


Is prosecution of an offense barred by a prior finding of “not true” as to the commission of the same offense at a probation revocation hearing?


No. Double Jeopardy is not implicated because a person facing an allegation of a new offense at a probation revocation hearing has not been placed in jeopardy of punishment for the offense. Additionally, common law collateral estoppel does not apply because revocation hearings are highly discretionary and findings of “true” or “not true” do not compel any particular result from the proceedings. This decision overrules Ex parte Tarver, 725 S.W.2d 195 (Tex. Crim. App. 1986). Read opinion.

Concurrence (Newell, J.):

“[The Court held in Ex parte Tarver that the State cannot prosecute a defendant for a criminal offense after a trial court rejects, at a probation revocation hearing, an allegation that the defendant committed that crime. We based that decision on the doctrine of collateral estoppel, which the United States Supreme Court held in Ashe v. Swenson is ‘embodied in the Fifth Amendment guarantee against double jeopardy.’ Today, we overrule Ex parte Tarver, and I join this Court’s opinion doing so. I write separately to express my reservations that the civil doctrine of collateral estoppel is truly ‘embodied within the text or history of the Fifth Amendment.’ Double jeopardy prohibits re-litigation of offenses, not issues or evidence. Cases such as Ashe are more appropriately analyzed as a due process violation rather than a double jeopardy violation.” Read opinion.


Good riddance. Tarver has been on life support for many years, and this decision finally puts it in its grave. Now prosecutors need not worry about coordinating motions to revoke with other counties to avoid compromising new offenses. It also removes any incentives for defendants to manipulate the revocation process to obtain a more favorable disposition of new offenses.

In re State ex rel. Mau v. Third Court of Appeals

No. WR-87,818-01                            10/31/18


May a trial court dismiss a jury and impose deferred adjudication after a defendant pleads guilty to the jury mid-trial and the jury returns a guilty verdict?


No. At the time that the defendant pled guilty to the jury, he did not waive his right to a jury trial nor did the State consent to a waiver. Without such a waiver, the trial court must resolve the issue of guilt by a jury trial. Furthermore, the trial court has a ministerial duty to enter judgment on a jury’s verdict once returned. Read opinion.

Concurrence (Alcala, J.):

“I do not join the Court’s analysis in section II-A because that analysis is unnecessary to the resolution of this case and, therefore, constitutes an advisory ruling that is inappropriate for an opinion granting mandamus relief. … [A] court should limit its written opinions to grants of mandamus relief that do not create new legal standards and the rationale underlying those decisions. That is precisely what this Court properly does in sections II-B and II-C [of the majority opinion]. But this Court strays from that principle in section II-A, which unnecessarily creates new law while explaining its reasons for denying mandamus relief under an alternative theory that this Court rejects, and which is entirely irrelevant to this Court’s decision to grant mandamus relief under the other sections.” Read opinion.

Concurrence (Newell, J.):

“I write separately to observe that the Court’s analysis makes clear that there is no such thing as a ‘State’s right to a jury trial.’ Instead, the Court holds that [Code of Criminal Procedure] Article 1.13(a) provides a limitation on the trial court’s authority, rather than a grant of power to the State. … Though we have posited that the State has legitimate interests in the method of trial, it is just as easy to read Article 1.13 as ensuring greater protections for a defendant’s right to a jury by limiting how and when the defendant can waive that right. Given that, it seems odd that a defendant who wants to waive a jury could nevertheless be forced to endure one. But the statute says what it says, and mandamus is not the appropriate vehicle to second-guess our Legislature.” Read opinion.


The lesson here is that a trial court cannot defer an adjudication of guilt after a jury finds a defendant guilty. This is not the first trial court to try to do so over the years. The Court’s refusal to grant relief on the State’s first argument highlights an issue for another day: what is the nature of a misdemeanor jury trial after a defendant changes his plea to guilty? In a felony case, the proceeding becomes a unitary one where the jury assesses punishment.

Texas Courts of Appeals

Senn v. State

No. 02-15-00201-CR                         10/25/18


Is the State required to show that a defendant was in a bigamous relationship with a sexual assault victim as defined by Penal Code §25.01 to prosecute him under the sexual assault enhancement in Penal Code §22.011(f)?


Yes. Under Arteaga v. State, 521 S.W.3d 329 (Tex. Crim. App. 2017), the State is required to prove facts constituting a sexual assault and facts constituting one of the six bigamy prohibitions listed in §25.01. Here, the evidence was insufficient because there was no evidence that the defendant “took, attempted, or intended to take any action involving marrying or claiming to marry [the victim] or living with [the victim] under the appearance of being married.” It is insufficient to show that if the defendant were to marry or claim to marry the victim, then he would be guilty of bigamy. Read opinion.

Dissent (Gabriel, J.):

“Because I believe the court of criminal appeals has twice stated that the State need only introduce evidence showing that the defendant would have been guilty of bigamy if he were to marry or claim to marry his victim, I would initially conclude that the State met its burden of proof regarding the enhancement allegation and would request a response to the State’s motion for rehearing.” Read opinion.


The majority and dissent differ over an ambiguity in the Court of Criminal Appeals’ opinion in Arteaga. Here, the defendant was married at the time of the offense: thus, he was prohibited from marrying the victim or living with the victim with the appearance of being married. Accordingly, he appears to fall under the plain language of §22.011(f) and §25.01 regardless of conflicting language in Arteaga. The Court of Criminal Appeals will likely have to grant review to sort this out. Perhaps, too, the Legislature should reconsider whether §22.011(f) serves a useful purpose in the fight against sexual crimes.

Cochran v. State

No. 06-18-00048-CR                         10/31/18


Do community supervision terms allowing the search of a probationer’s residence permit a search of his motel room?


Yes. A condition of community supervision authorizing a search does not violate the Fourth Amendment as long as it is reasonably restricted to promote the purposes of community supervision. Here, the terms of the defendant’s community supervision were limited to “searches for illegal drugs or contraband.” These terms also authorized a search of the motel room because the repeated stays (13 of the past 19 nights) at the motel support a finding that the room was the defendant’s temporary residence. Read opinion.


Properly structured terms of probation like these could prove an important tool for making probation more effective for rehabilitation as well as fighting crime.


NCFI Prosecutor Courses

Applications are now being accepted for the National Computer Forensics Institute prosecutor courses. All costs, including travel, are covered through the Federal government. The deadline to apply is November 26, 2018. Program dates and application information available here.

New mandatory Brady training available online

TDCAA’s new state-mandated Brady training video is now available online through our website. As required by that statute (which went into effect on January 1, 2014), every attorney prosecuting a jailable criminal offense must complete one hour of instruction on a prosecutor’s duty to disclose such evidence and information within 180 days of assuming those duties, and Court rules require prosecutors to take a refresher course in the fourth year after completing that initial course. Our new 2018 course satisfies either requirement, and successful completion of the course will be recorded by TDCAA and shared with the Court as proof of satisfying this state mandate. Those who complete the course will also receive one hour of MCLE ethics credit from the State Bar of Texas. Visit our homepage to access and complete this course.

Jury selection training

Registration for Jury Selection in Impaired Driving Prosecutions is now open. This free 4-hour program will be held in three cities (Richmond, Rockwall, and San Antonio) on Friday, December 7. More information and registration links are available here.