October 20, 2017

Hurricane Harvey Relief Fund – give today!

In the wake of Harvey’s devastating impact on our state, the Board of the Texas District and County Attorneys Foundation has started a relief fund to assist those prosecutor office staff members who have suffered losses. 100 percent of your donation to the fund will go directly to those who have suffered hurricane and flood damage. The campaign runs until October 31, so please help out! Please click here to help those in our profession who need your help! And if you have suffered loss and are seeking assistance, click here to download the application form. If you have any questions, call Rob Kepple at 512/474-2436.

Court of Criminal Appeals of Texas

State v. Gutierrez

No. PD-0197-16                10/18/17


Is a defendant entitled to a mistrial when a juror reveals he knows a witness after the start of trial but the court finds the juror is not actually biased?


No. A defendant’s selection of an impartial jury is hindered when a juror withholds material information during voir dire. A violation alone, however, is insufficient to require a mistrial. A defendant must also show harm from that violation through the juror’s actual bias. If the juror is not actually biased, the defendant has not been harmed. If the court finds that the juror is actually biased, the only remedy is a mistrial. Read opinion.


This is a remarkable opinion. It arises from a State’s appeal in a case in which the trial court granted the defendant’s motion for new trial for ineffective assistance of counsel post-verdict after defense counsel had earlier agreed to proceed with 11 jurors and the jury convicted the defendant on three of five charges. But because the trial court would have denied the defendant’s motion for mistrial (on the basis of the allegedly biased juror), the defendant was not entitled to a new trial. Giving deference to the trial judge, one could very easily see this decision going the other way. But the defendant ultimately could not prove that the trial court would have erred in denying the motion for mistrial because the record did not show that the only reasonable interpretation of the evidence was that the juror was biased. Proof positive that you should never give up. Great job by the State in this case.

State v. Bolles

No. PD-0791-16                10/18/17


Can a zoomed-in, cropped image of a larger non-lewd photograph be considered child pornography?


Yes. Zooming in and taking a magnified picture of a portion of a larger photograph of a child constitutes the creation of a new and separate visual depiction of the child at the same age as when the original photograph was taken. The newly created image could be considered child pornography even though the original image is not when the manipulation and composition of the new image demonstrates an intent to elicit a sexual response in the viewer or an inappropriate and lascivious focus. Read opinion.


The odds are that you will not have a child pornography case like this one. But the reasoning is thorough, as is the legal research. So even if you are prosecuting the more typical child pornography case, this decision could be very helpful in discussing the nature of child pornography and why it is illegal in the first place.

Hernandez v. State

No. PD-1049-16                10/18/17


Is a variance between the charge and the evidence presented describing the manner and means by which a defendant caused bodily injury material?


No. A variance regarding the use of hands to cause bodily injury (e.g. striking v. choking) is a non-statutory allegation that describes the offense. This variance is material only when it converts the offense proven at trial into a different one than was pled in the charging instrument. In this case, the variance was immaterial because the indictment charged, and the evidence showed, the defendant caused bodily injury to the victim with his hands. “Exactly how [the defendant] used his hands to cause the bodily injury is inconsequential to the legal sufficiency analysis.” Read opinion.

Concurrence (Richardson, J.):

“The evidence was sufficient to support the jury’s verdict of aggravated assault with a deadly weapon. I write separately, however, because I arrive at that conclusion via a different route than the majority. In holding that the evidence was sufficient to support the conviction, the majority opines that the variance between what was alleged in Count 2 of the indictment and what was proved at trial is immaterial. I would instead hold that there was no variance at all.” The evidence showed that the defendant struck the victim with his fists, briefly left the room to retrieve a jug of water, then returned and poured the water down the victim’s throat while strangling her. Contrary to the defendant’s argument (which the majority did not decide), the pause to retrieve the water does not divide the actions into two separate offenses. The indictment correctly alleged that the defendant caused bodily injury by striking the victim with his fists while using water as a deadly weapon. Read opinion.


The dispute in this case centered on whether the State was entitled to a deadly weapon finding (the water poured down the victim’s throat). But the ultimate decision became whether there was a material variance in how the defendant used his hands. The majority holds that there was not a material variance because it did not really matter how the defendant used his hands—he still committed the assault. The concurring opinion would hold that there was no variance because the entirety of the defendant’s actions constituted one assault, which encompassed the manner in using the defendant’s hands that was alleged by the State. The court does not decide whether there was only one assault or a series of multiple assaults. That is an open question that really needs to be decided for most such cases, but it did not need to be decided in this case.


TDCAA is now shipping its 2017 code books. For more information or to place an order, visit http://www.tdcaa.com/publications.