November 20, 2015

Texas Court of Criminal Appeals

State v. Wachtendorf

No. PD-0280-15                 11/18/15


Should the State’s time for filing notice of appeal of an order begin when the trial court signs the order, even if no notice was given to the State until the time to appeal had expired?


Yes. The State did not wish to change the existing rule that the filing period for an appeal begins when the trial court signs an order; rather, it argued that it was unfair to hold the State to that rule because no notice was given. The Court declined to create any new rule and upheld the precedent that the time period begins upon signing. Read.

Concurrence (Newell, J.):

Judge Newell writes to express his opinion that the plurality opinion is not necessary given that the appeals court correctly applied precedent, and the Court instead should have denied review. Read.


Prosecutors who regularly work on State’s appeals know to keep an eye on the court’s file to make sure a signed order doesn’t “appear.” That the CCA and other courts have written on this issue multiple times indicates that prosecutors should seek an amendment to Article 44.01 providing the State additional time to file notice of appeal when there is a failure of notice of an appealable order.

Texas Courts of Appeals

Gonzales v. State (4th COA)

No. 04-14-00649-CR        11/10/15


Was it a material misrepresentation or omission for an officer to include hearsay in his affidavit without specifically noting it as hearsay?


No. While the Court does agree that a defendant should be allowed to challenge a search warrant affidavit for material omissions made intentionally or with reckless disregard for the accuracy of the affidavit, there was no evidence in this case that such omissions were made intentionally or recklessly. Read.


While the court upholds the trial judge’s ruling in this case, that does not mean that some other trial court could not suppress the blood on a similarly flawed warrant. Two small changes would have taken this warrant from endangered to perfect: identifying the civilian witness—W1—as “W1, a civilian witness whose identity was established by the responding officers”, and by including language clarifying that W1 relayed his information to one officer who passed it on to the affiant.

Morrison v. State (8th COA)

No. 08-13-00319-CR        11/4/15


Was it reversible error for the judge to ban the defendant from the courtroom during voir dire and throughout the guilt-innocence portion of the trial?


No; it was error, but the error was harmless. The defendant’s right to be present in the courtroom until the jury is seated is nonwaivable; thus, it was error for the trial court to remove him during voir dire. Additionally, it was error for the trial court not to give the defendant the opportunity to return to the courtroom. The Court found the errors harmless, however, due to the overwhelming evidence of the defendant’s guilt and the fact that the jury found him guilty of the lesser-included offense of murder, rather than capital murder. Read.


This case illustrates the difficulties trial courts face in balancing the defendant’s right to be present with the need for an orderly court during a jury trial—so much so that the opinion may seem contradictory in places. If a defendant is disruptive during voir dire, make sure the court exhausts all alternatives prior to gagging or removing him and ensure he receives opportunities to return and behave. Make a good record about the measures considered and the measures actually implemented. Utilmately, a court may be forced to select a jury while the defendant sits in court acting up. That will probably turn out bad for him.

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