November 9, 2018

Texas Court of Criminal Appeals

Johnson v. State

No. PD-0197-17                 11/7/18


Is evidence that the defendant, a funeral home director, was unable to perform cremations and had on multiple occasions given customers the cremated remains of the wrong bodies sufficient to prove theft by accepting payments for unperformed cremation services?


Yes. In a theft case arising from a contract, the State must prove that the defendant intended to deprive the owner of the property when it was taken. Here, the defendant knew he was unable to obtain death certificates, which are required to perform cremations, starting a week before he accepted payment from the victim. The defendant on multiple occasions gave customers the remains of a different body that had been cremated months earlier. Cremated remains are not fungible and the use of different remains to deceive customers shows an intent not to properly cremate and return the remains for which he was paid. Read opinion.

Concurrence (Yeary, J.):

The evidence was legally sufficient to support the defendant’s conviction. However, the majority opinion incorrectly construes Penal Code §7.02(a)(2) by allowing the defendant to be found criminally responsible for the noncriminal conduct of another person. The defendant is more appropriately held liable for his wife’s actions (depositing the checks with no knowledge of the theft in obtaining them) under Penal Code §7.02(a)(1), which provides for vicarious criminal responsibility for a person who causes “an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense.” Read opinion.

Concurrence (Walker, J.):

“In discussing whether there was sufficient evidence to support the jury’s guilty verdict on Count I, the majority and Judge Yeary’s concurring opinions consider whether the evidence was sufficient to show that [the defendant] was guilty as a party either under [Penal Code §]7(a)(2) as charged, or under a §7(a)(1) theory, respectively. However, the indictment did not charge [the defendant] as a party. The indictment alleged that [the appellant] committed the offense as a primary actor, and the jury’s instructions authorized his conviction not just as a party but also as a primary actor. … The evidence is sufficient on the theory that [the defendant] was guilty as a primary actor, and for that reason I concur in the Court’s decision to reverse the judgment of the court of appeals.” Read opinion.


Cases like this exist in that fuzzy border zone between civil disputes and crimes. The macabre facts aside, look to this case for its key facts that made the State’s evidence sufficient to show a crime rather than a breach of contract.

Traylor v. State

No. PD-0967-17                 11/7/18


Was a jury note showing the nature of the jury’s voting breakdown an acquittal for double jeopardy purposes for the charged offense even though a mistrial was declared after the jury deadlocked?


No. The jury foreperson communicated to the judge that the jury was unanimous against guilt on the charged offense but deadlocked on the lesser-included offense. After additional hours of deliberation, the judge questioned the foreperson and confirmed that the jury was still deadlocked on the lesser-included offense. The jury’s note lacks the “finality necessary to constitute an acquittal” on the charged offense because the jury continued deliberating after the reported vote count and no indication was given whether the vote on the charged offense remained unanimous. Additionally, the jury did not fill out any of the certificates on the Court’s charge because, as reported by the foreperson, they had “no decision.” Read opinion.


Here, the Court reconciled multiple existing Texas precedents with the U.S. Supreme Court’s opinion in Blueford v. Arkansas, 566 U.S. 599 (2012). Although a jury can informally acquit a defendant in some circumstances, the facts in this case were even less persuasive than those the Supreme Court rejected in Blueford. A jury charge that is properly constructed under Barrios v. State, 283 S.W.3d 348 (Tex. Crim. App. 2009) means that a jury need not acquit of a greater offense before considering a lesser-included offense.

Texas Courts of Appeals

Martinez v. State

No. 13-17-00475-CR                         11/1/18


Is showing that a defendant on probation had some income in months that he made no payments sufficient to prove that he had the ability to make payments and revoke probation for failure to do so?


No. A source of income is just one factor when determining a defendant’s ability to pay community supervision fees. Here, the defendant testified that he had several different jobs over the probationary period, but he “kept getting let go or laid off.” The State presented no evidence about how much disposable income the defendant would have considering bills and other expenses. Read opinion.


This is a fact-bound decision that shows the difficulties inherent in revoking a probationer solely for failure to pay program fees.

State v. Heath

No. 10-18-00187-CR                         10/31/18


Is a discovery request that does not designate any items sought to be produced sufficient to give the State notice of a duty to provide a 911 recording pursuant to Code of Criminal Procedure Art. 39.14(a)?


No. Before the State is required to produce discovery items under the requirements of Art. 39.14, the defendant must timely request discovery and designate which items are requested to be produced. Eleven days before the fourth jury trial in this proceeding, the State discovered a 911 recording and provided a copy to the defendant the day after the prosecutor received it. The trial court abused its discretion by excluding the recording because the discovery request (“Can I get discovery on this client? Cause #2017-241-C2.”) created no duty to produce it. Read opinion.


The court, consistent with an earlier decision, holds that a discovery request must specifically identify the item requested before a failure to timely produce the item may be excluded by the trial court. This result may seem harsh to outside observers, but the facts here also show that the late production of the recording was not “willful.” Rather, it appeared to be an oversight that was remedied as soon as the prosecutor discovered it. A trial court is authorized to exclude evidence only if the prosecution “willfully” fails to produce it. See Francis v. State, 428 S.W.3d 850 (Tex. Crim. App. 2014).


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.

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.