November 22, 2019

Court of Criminal Appeals

Garcia v. State

No. PD-0035-18                 11/20/19


In a sexual assault trial, where one act of intercourse is alleged in the indictment and more than one act of intercourse is shown by the evidence, must the State elect the act it will rely on for a conviction at the end of its case in chief?

Holding (Keasler, J.):

Yes. Once the State rests, and after a timely request by the defendant, the trial court must order the State to make an election. Based on the defendant’s due-process rights to receive adequate notice and to present a defense, the defendant had a constitutional right to an election. However, the Court concluded that the trial court’s error was harmless because the defensive strategy was a “blanket denial” that either incident had occurred. Read Opinion.

Concurring (Yeary, J., joined by Slaughter, J.):

“For reasons that I developed in my concurring opinion in Owings, I remain dubious, at best, that this constitutes the appropriate harm standard for election error. See Owings, 541 S.W.3d at 154–56 (Yeary, J., concurring) (arguing that election error neither definitively implicates the constitutional right to a unanimous jury verdict nor bedrock due-process notice requirements).” Read Opinion.


The Court rejects the State’s argument that election error is non-constitutional error. Election is an issue that child abuse prosecutors must be prepared to address at trial. Here, the State was probably saved by an instruction designed to protect another important right of the defendant—unanimity.

Allen v. State

No. PD-1042-18                 11/20/19


Does the summoning witness/mileage fee under Code of Criminal Procedure Art. 102.011 violate the separation of powers clause?

Holding (Slaughter, J.):

No. Because the summoning witness/mileage fee was imposed to reimburse an expense directly incurred by the State in the prosecution of this particular case, it was for a legitimate criminal justice purpose, which makes it a constitutional court cost, as opposed to an impermissible tax. Read Opinion.

Concurring (Yeary, J.):

“I am content to join the Court’s opinion in full, though it declares the State’s petition for discretionary review to have been granted improvidently—at least in this case. Because here the State has prevailed without the necessity of our addressing the need to overrule precedent, it is not an ideal case to contemplate a departure from stare decisis. For this reason, I am able to join the Court’s present opinion in full.” Read Opinion.

Concurring and Dissenting (Keel, J.):

“We have seventeen—and counting—court cost cases pending review. We would correctly resolve them all by overruling Peraza and Salinas. Doing so would put an end to this noxious court-cost litigation without offending stare decisis. See Febus v. State, 542 S.W.3d 568, 575–76 (Tex. Crim. App. 2018) (adhering to poor reasoning does not serve the goals of stare decisis). Since the majority instead takes a narrow approach that disregards the State’s arguments and dismisses its cross petition, I dissent to its methods and concur only in the result it reaches.” Read Opinion.  


Judge Keel’s dissent bears watching. How and whether convicted persons reimburse the State for the consequences of their actions is subject to fair debate. That debate should be in the legislature rather than cost by cost, fee by fee in the courts. A ridiculous amount of attorney and judge hours have been squandered on fee and cost litigation in the last decade.

Texas Courts of Appeals

Chabrier v. State

No. 03-18-00768-CR         11/14/19


Is offensive-contact assault a lesser-included offense of sexual assault?


No. The elements of offensive-contact assault are not “functionally the same or less than those required to prove” the offense of sexual assault. For the offense of sexual assault, the State was required to prove the defendant penetrated the victim’s sexual organ without her consent, not that the defendant knew or should have reasonably believed that the victim would regard the contact as offensive or provocative. Read Opinion.


The lesser-included offense analysis is a straightforward application of existing precedent. Another useful holding from this case was that the court rejected the defendant’s argument that his trial counsel was ineffective because his defensive strategy was based on a legal theory that did not apply.  

Ex Parte Floyd

No. 13-18-00463-CR         11/14/19


Does intoxication manslaughter fall under Code of Criminal Procedure Art. 12.01(1)(A), which provides no statute of limitation period for manslaughter and murder?


Yes. Intoxication manslaughter is encompassed within the term “manslaughter” in Art. 12.01(1)(A), rather than Art. 12.01(8), and is subject to no limitations period. The Court rejected the argument that intoxication manslaughter fell within the catch-all provision of Art. 12.01(8). In reaching its conclusion, the court observed that prior to 1994, intoxication manslaughter was in the same chapter of the Penal Code as manslaughter because it “was considered an alternative way to commit manslaughter.” Read Opinion.             


The court’s alternative holdings here are helpful because prosecutors often change the theory of car crash prosecutions between manslaughter and intoxication manslaughter depending on how the case develops after an initial indictment.


There will be no case summaries next week. Case summaries will resume publication on December 6. Happy Thanksgiving!

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