October 27, 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. Elrod

Nos. PD-0704-16 to -0706-16      10/25/17


Can a search warrant be supported on a tip from a named informant of unknown reliability?


Yes. A supporting affidavit that specifies a named informant as the source of information is sufficient to support probable cause when the tip contains enough particularized facts to suggest direct knowledge on the informant’s part. The determination does not rely on a presumption of reliability, but on the extent and detail of the informant’s statement. Read opinion.


This is a unanimous decision that really should not have been necessary. It has long been the law in Texas that a named informant, even a criminal one, can provide probable cause for a search warrant. It is only necessary that the information is sufficiently detailed and that the affidavit reveals the informant’s direct knowledge. The court’s decision addresses each of the problems that the trial court had with the affidavit. Excellent job by the State in prevailing in this State’s appeal.

Texas Courts of Appeals

Saldivar v. State

No. 14-16-00888-CR        10/19/17


Does a judgment that is void due to a sentence outside the statutory punishment range require a guilty plea to be set aside?


No. When a judgment following a guilty plea is successfully challenged, the appropriate remedy is specific performance of the plea. If specific performance is not possible, the appropriate remedy is withdrawal of the plea so that both parties return to their original positions. A mutual mistake of law regarding the applicable range of punishment means that the plea cannot be enforced as the parties originally intended and must be set aside. When all parties understood and agreed to the correct range of punishment but the court failed to impose a mandatory fine, the plea can be enforced as intended by holding a new hearing on punishment only. Read opinion.


This is an interesting decision because the court distinguishes the recent decision of Thomas v. State, 516 S.W.3d 498 (Tex. Crim. App. 2017), instead of following it, as suggested by both parties in this case. The court extensively analyzed Thomas and found that this defendant could indeed receive specific performance with a new punishment hearing in which the mandatory fine could be assessed. A withdrawal of the guilty plea is not necessary because the defendant was correctly admonished as to the mandatory fine being part of the range of punishment. It is possible that the Court of Criminal Appeals will review this decision because Thomas is so recent, but it could still hold up.


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