November 21, 2014



Texas Court of Criminal Appeals

Ex Parte Bryant

No. WR-74,973-01     11/19/14

(click here to read the news story on the original 2008 trial)


When the State repeatedly referred to the fact that two defense witnesses had failed polygraph tests, was the defendant’s counsel ineffective for not objecting and moving for a mistrial?


Yes. While the court refused to adopt a per se rule against referencing polygraph results, on the facts of this case, the State’s introduction of the evidence encouraged the jury to abdicate its role as factfinder and rely on the polygraph machine to decide who was telling the truth. Defense counsel had no reasonable trial strategy for not objecting, the polygraph evidence was a crucial part of the State’s evidence, and the trial judge should have granted a mistrial had the objection been raised. Read the opinion.

Dissent (Keller, P.J.):

Other evidence in the case was strong enough that the polygraph results likely did not influence the jury. Read the dissent.


Trial prosecutors should view this opinion this way: Do not ever mention polygraph testing, and do not let your witnesses mention polygraph testing. Defense lawyers should view this opinion this way: If I do not object to polygraph evidence, I will be ineffective unless I have a REALLY good reason.

Chase v. State

No. PD-1768-13         11/19/14


Does Health and Safety Code §822.013(a), which states that a dog or coyote that attacks certain other animals may be killed by someone who witnessed the attack, provide a defense to criminal prosecution in an animal cruelty case?


Yes. The legislative history of the statute suggests it exists to protect owners from facing civil or criminal consequences if they act to protect their animals. Read the opinion.

Dissent (Meyer, J.):

The statute is not intended to apply to residential neighborhoods where neighbors kill their neighbors’ pets for attacking their own pets. Read the dissent.


The Legislature meets for 140 days every other year. It is a wild and wooly time where thousands of people descend on Austin in hopes of changing (or saving) what they perceive the law to be. Frequently bills are passed that modify the same statute in contradictory ways. This situation sometimes takes multiple years to correct. The mischief in the Court’s decision is that it accepts that criminal defenses may be enacted in one code that apply to offense in another code. This raises the spectre of various committees (or the opposite chamber) obliquely trying to undo what another has done, because it is easier to be subtle (or sneaky) than forthright. Whether one agrees that a citizen should be immune from criminal prosecution for shooting a dangerous dog or coyote is beside the point—determining the applicable law to such facts should not require an in-depth scrutiny of each legislative enactment to determine whether it silently emasculates other legislation. If the Legislature is worried about the Court’s decision, it could fix the problem by amending the Code Construction Act such that defensive language in one Code applies to another Code only when specifically referenced or incorporated. Don’t bet on that happening.

Ex Parte Gallo

No. WR-77,940-02     11/19/14


1) Did the attorney appointed to represent the defendant in his initial habeas proceeding have a continuing duty to representing the defendant until relieved of his duties by a court?

2) Was the defendant’s original habeas counsel permitted to file a subsequent habeas application against the defendant’s will?


1) No. State habeas counsel’s duty ended when he filed the motion for appointment of counsel for the defendant’s federal writ. When the Court of Criminal Appeals notifies the convicting court that a habeas application will be allowed to proceed under CCP art. 11.071 §5, the convicting court is supposed to again appoint counsel at that time.

2) No. No one can file a subsequent application without the defendant’s permission.

Read the opinion


Competing lawyers filing competing writs in state and federal court must be awkward. Do not be surprised, though, if it takes longer for Gallo to complete post-conviction litigation than if the Court had allowed state writ counsel to move forward with the subsequent writ.

Bonilla v. State

No. PD-1099-13         11/19/14


When the indictment and judgment list an offense date that is before the effective date of the amendment to Penal Code §3.03, but the evidence shows that the acts that constituted the offense occurred both before and after that effective date, does the trial judge have the discretion to stack the sentences?


Yes. If the defendant does not request that the State elect a specific incident and the State does not specify an incident that occurred before September 1, 1997, a trial judge does not abuse his discretion in cumulating the sentences. Read the opinion.

Concurrence (Alcala, J.):

The court calls the test it uses a “some evidence” test, but it is really using the Jackson v. Virginia “sufficiency of the evidence” test. Read the concurrence.

Dissent (Price, J.):

The State should not benefit from a stacking order that is not clearly authorized for joinder by the 1997 amendments to §3.03(b). Read the dissent.


Judge Cochran’s majority opinion gives defendants a map to try and avoid stacking of convictions for offenses committed around the date of this change in law, but there would be nothing to prevent the State from electing dates of offenses that allowed stacking, so the map may be a road to nowhere.

Ex Parte Bowman

No. PD-1375-14         11/19/2014


Does the doctrine of laches apply to a habeas application filed under Art. 11.072 of the Code of Criminal Procedure?


Yes. Laches applies to any habeas case. Read the opinion.


This is a good decision. There is no good policy reason why laches should not apply to an Art. 11.072 writ.




Texas Courts of Appeals

Gore v. State

No. 01-13-00608-CR              11/13/14


1) Is Texas’s implied consent law facially unconstitutional under the Fourth Amendment because it creates a per se rule that no warrant is required to conduct a blood draw?

2) Does the implied consent statute constitutionally allow a warrantless blood draw because a driver has consented to the draw in advance when he accepted his driver’s license?

3) If an officer knows that it may take two to four hours to obtain a warrant for a blood draw but does not ever seek a warrant, may the officer order a warrantless blood draw under an exigent circumstances theory?


1) No. A facially unconstitutional statute always operates unconstitutionally in all possible circumstances. The implied consent statute mandates a blood draw without consent in some circumstances, but it does not mandate a blood draw without a warrant.

2) No. A person has a constitutional right to delimit or withdraw the scope of consent previously given. The State has the ability to condition the right to drive on consent to a blood draw, but it cannot require the waiver of a constitutional right in return.

3) No. Allowing warrantless blood draws in every case because it is probable that the warrant will take a long time to issue creates a per se rule of exigency, which is what McNeely prohibits. Additionally, even if a warrant delays a blood draw for three hours, expert testimony establishing that this delay likely reduced the defendant’s BAC by .06 is still admissible.

Read the opinion.

Leal v. State

No. 14-13-00208-CR              11/13/14


Does Texas’s “third-strike” implied consent statute fall within the consent exception to the warrant requirement, and does it make a motorist’s implied consent to a blood draw irrevocable?


No. Consent is an exception to the warrant requirement, but implied consent is not the same kind of consent and is not an exception, because even implied consent can be withdrawn. To rule otherwise would be to establish a per se exception to the warrant requirement, which is prohibited by McNeely. Read the opinion.

Dissent (Frost, C.J.):

The United States Supreme Court has found in various situations that it is not reasonable for a suspect to withdraw consent. For example, probationers can be made to sign an agreement consenting to a search of their home by any officer at any time, and the consent may not be withdrawn. Likewise it is reasonable to conclude that a repeat DWI offender is not able to withdraw consent to a blood draw when he is again suspected of DWI. Read the dissent.


Finally, a Texas appellate jurist at least willing to consider arguments that the Texas Implied Consent statute survived McNeely. Let’s hope the Court of Criminal Appeals will resolve the issue soon.

Office of the Attorney General

Request from the Atascosa County Attorney

RQ-1231-GA              11/17/14


Are restitution funds, ordered in a criminal judgment by a statutory county court and collected by the county clerk, funds “belonging to the county” and required to be deposited with the county treasurer or in the county treasury pursuant to Local Government Code §113.021? Read the request.