October 22, 2010

Court of Criminal Appeals

State v. Dobbs

10/20/10 : Cite No. PD-0873-09


May officers seize items that are not immediately apparent as contraband if, while still lawfully on the premises, they conduct further investigation and determine that items in plain view were stolen property?


Yes. Where there is probable cause to believe that items found in plain view constitute contraband and PC arises while police are still lawfully on the premises, any further investigation into the nature of those items does not violate the Fourth Amendment. Read Opinion.


At last the unwarranted protection afforded by the Court in White has been overruled, and state law on the plain view doctrine has been brought back in line with federal law. This is just plain sensible law.

Benavides v. State

10/20/10 : Cite No. PD-1551-09


Was acquittal proper when the defendant was convicted of aggravated assault, an offense that was not actually a lesser-included offense of aggravated sexual assault alleged in the indictment?


No. The court of appeals also needed to hold that the evidence was legally insufficient to justify the jury’s verdict that the defendant was guilty of the lesser-but-not-included offense of aggravated assault. Read Opinion.


Judge Hervey believes the case should simply be remanded to the court of appeals for further proceedings not inconsistent with the opinion. Read Dissent.


This a technical, but important, case on the appropriate appellate remedy. There are no shortcuts.

Texas Courts of Appeals

Mims v. State – 1st COA

10/14/10 : Cite No. 01-10-00466-CR


In an arson case, can fire support a deadly weapon finding?


Yes; under Penal Code §1.07(17), a deadly weapon is not restricted to solid objects, and the conduct that is used for an element of the offense can also serve as the basis for a deadly weapon finding. Read Opinion.


Something useful to keep in your arson and deadly weapon files. Now two intermediate courts have held that fire-a tangible thing, if not physical object-may be a deadly weapon. Under this definition, heat, cold, smoke, and fumes perhaps qualify as deadly weapons.

Escamilla v. State – 4th COA

10/13/10 : Cite No. 04-09-00530-CR


Did the trial court improperly admit, as evidence of a sexual assault, testimony from a SANE about the time taken for a child’s anus to dilate?


Yes, the SANE was unable to detail the extent to which the underlying scientific theory and technique are accepted as valid in the scientific community, made only vague references to literature, and did not seem to understand "the potential rate of error of the technique." Read Opinion.

Concurrence and Dissent:

Justice Hilbig agrees with the judgment but believes the trial court did not abuse its discretion by admitting the testimony because the State’s expert’s testimony met the standard for reliability. Read Concurrence and Dissent.


This case is a must-read if you work with expert testimony. The court’s opinions reflect how "reliability" is not always easily assessed, though former Bexar County DA Justice Hillbig does a much better job of marshaling the evidence and reaches the better result. The bottom line is that you need your witnesses to detail how they satisfy Daubert/Kelly/Nenno standards. Make it easy for the appellate courts.

Pham v. State – 14th COA

10/14/10 : Cite No. 14-09-00484-CR


Did A, who gave drugs to B to pass on to C, have standing to challenge the search of B’s vehicle in which the bag of drugs were discovered?


No. Although A took measures to conceal the drugs, he assumed the risk that B would frustrate any expectation of privacy and A had no intention of repossessing the bag. Read Opinion.


The court makes quick, clear work of explaining standing in this context.

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