October 26, 2018

Texas Courts of Appeals

Islas v. State

No. 14-17-00660-CR                         10/23/18


Does an affidavit supporting a warrant for a blood draw after a warrantless blood draw was taken require a reference to the prior blood draw?


No. The affidavit is not required to show why an additional blood sample would provide additional material evidence or why the previous blood draw was inadequate or ineffective. That the defendant previously had his blood drawn does not disprove probable cause and is not material to the magistrate’s decision. Read opinion.


This case is primarily a decision under Franks v. Delaware, the United States Supreme Court decision that held that an affirmative and material misrepresentation in a search warrant affidavit would render the warrant invalid. There has been some discussion in various appellate courts over whether Franks applies to omissions, not just affirmative misrepresentations. There has yet to be a definitive answer to that question, but this court of appeals has previously decided that Franks applies to omissions, as well as false statements. In any event, this is a very thorough and well-reasoned decision. It is not unusual for officers to seek a second blood draw from a suspect, especially after Missouri v. McNeely. This decision should be very helpful for prosecutors trying cases with multiple blood draws. However, because the opinion addresses an issue not yet decided by the Court of Criminal Appeals, make sure to watch and see if the Court decides to review the case.


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.

New mandatory Brady training available online

TDCAA’s new state-mandated Brady training video is now available online through our website. As required by that statute (which went into effect on January 1, 2014), every attorney prosecuting a jailable criminal offense must complete one hour of instruction on a prosecutor’s duty to disclose such evidence and information within 180 days of assuming those duties, and Court rules require prosecutors to take a refresher course in the fourth year after completing that initial course. Our new 2018 course satisfies either requirement, and successful completion of the course will be recorded by TDCAA and shared with the Court as proof of satisfying this state mandate. Those who complete the course will also receive one hour of MCLE ethics credit from the State Bar of Texas. Visit our homepage to access and complete this course.

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.