October 24, 2014

Texas Court of Criminal Appeals

Aekins v. State

No. PD-1712-13                        10/22/14


Was double jeopardy violated when the defendant was convicted for both contacting and penetrating the victim’s sexual organ with his mouth?


Yes. The facts necessary to prove the first offense are subsumed within the facts necessary to prove the second offense. Read the opinion.

Concurrence (Keller, P.J.):

The court creates a new “merger” analysis that is not only unnecessary to reach the proper conclusion but is based on a disavowed Supreme Court opinion. Read the concurrence

Concurrence (Keasler, J.):

The court reaches the proper conclusion but its decision will make double-jeopardy analysis more complicated and harder to navigate. Read the concurrence.


This opinion should have been nothing more than a straightforward application of the court’s prior decision in Patterson v. State, 152 S.W.3d 88 (Tex. Crim. App. 2004), which the State asked the court to overrule. Instead of articulating reasons why Patterson should (or should not) be overruled, the majority opinion uses the word “merger” throughout its opinion. As noted by Judge Keller in her concurring opinion, this word was used as part of the “merger doctrine” that the United States Supreme Court rejected almost 25 years ago in Grady v. Corbin, 495 U.S. 508 (1990) (and which remains rejected, even after this decision). In this case, the majority has pulled the word “merger” from other state court decisions that have been decided in line with Patterson. Do not let defense counsel tell your judge that the “merger doctrine” (or, heaven forbid, the “carving doctrine”) has been resurrected by the Court of Criminal Appeals. Read the opinion. The majority makes it clear that is not the case. But do not read the opinion expecting to be educated better about double jeopardy law. Read Judge Keller’s concurrence or Patterson instead.

Texas Courts of Appeals

State v. Anderson

No. 09-13-00400-CR                        10/20/14


When the defendant was involved in a one-car accident injuring herself and her 2-year-old passenger, was the evidence obtained via the subsequent warrantless blood draw performed under the authority of the implied consent statute admissible?


No. The implied consent statute does not provide an exception to the warrant requirement. Read the opinion.


This is a very thorough decision that addresses all of the issues involved with this question in light of Missouri v. McNeely.  But the validity of our “implied consent” law and the ability to make an “exigent circumstances” argument in such cases are ultimately questions that the Court of Criminal Appeals will have to decide. This decision may very well be upheld. Stay tuned.

State v. Jolly

No. 07-14-00188-CR                        10/3/14

No. 07-14-00189-CR


Could the defendant complain when the State waited eight years after indictment to try the case, but the defendant never asserted his right to a speedy trial?


No. The defendant’s awareness of the pending charges combined with his failure to complain about the lack of trial negated the prejudice suffered by the State’s otherwise inexcusable delay. Read the opinion.


This is a short but very helpful decision that is made all the more helpful by the fact that it is a State’s appeal from a trial court order granting relief to a defendant. Definitely utilize it if confronted with a defendant who has been dilatory in asserting his right to a speedy trial. This case also makes clear that a speedy trial violation has not necessarily occurred, even if there has been a lengthy delay that the State cannot justify.

Holloway v. State

No. 06-13-00255-CR                        10/1/14


Could a stab wound that was too small to require stitches be considered “serious bodily injury” when the victim suffered from a condition that prevented her blood from clotting properly, and expert testimony indicated that a stab wound could cause the death of a victim who suffered from the condition?


No. The testimony was hypothetical and did not indicate that the victim’s specific wound could have caused her death. Read the opinion.


This decision entitles the defendant to a new punishment hearing on second-degree aggravated assault (instead of first-degree). But fret not. This defendant also received life in prison in a murder conviction, so he is not getting out of prison any time soon. The holding itself may be a correct application of the law to these particular facts, but there is no similar caselaw cited to support the decision. If the issue comes up, read this decision to see if it can be distinguished from your facts.


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