October 3, 2014



Texas Court of Criminal Appeals

Delay v. State

No. PD-1465-13         10/1/14


When Texans For A Republic Majority (TRMPAC), a political action committee of which the defendant was a member, struck an agreement with the Republican National State Election Committee that RNSEC would contribute $190,000 to Texas candidates from an account that did not involve corporate contributions and TRMPAC would reimburse them the $190,000 from an account that did involve corporate contributions, was the defendant guilty of money laundering?


No. Money laundering requires the money that is being swapped to be proceeds from criminal activity. Neither the agreement to swap the money nor the actual expenditure of the money in this case were illegal; therefore, the swap of the money itself was not money laundering. Read the opinion.

Concurrence (Johnson, J.):

Like some of Goldman Sachs’s dealings with a Spanish bank, the wheeling and dealing was a tad shady, but legal. Read the concurrence.

Dissent (Meyers, J.):

By requiring the State to prove that corporations knew that their contributions were illegal when they were made to candidates, the majority effectively repeals the portions of the Elections Code that are at issue in this case. The State will never be able to meet that burden. Read the dissent.


This decision is quite complex and frankly will have little application to the day-to-day work of prosecutors. If you do prosecute a money laundering case, the important holding of this decision is that the culpable mental state of “knowingly” does not just relate to the action of conducting, supervising, or facilitating; the State must also prove that the defendant knew that the transaction involved the proceeds of criminal activity. And in regard to this particular case, the court held that there was no evidence that the defendant was aware that, by agreeing to send $190,000 of “soft money” to RNSEC in exchange for RNSEC sending $190,000 of its “hard money” to Texas candidates, TRMPAC had committed a violation of the Election Code. The defendant merely believed that, so long as the “soft money” retained its character as “soft money” and the contributions from RNSEC to the Texas candidates came from an account into which no corporate contributions had been deposited, the exchange would not violate the Election Code. Similarly, the majority’s finding of the requirement of a culpable mental state for the related Election Code offense and the extension of that culpable mental state to knowledge or awareness that a particular contribution violated the Election Code, seems to follow the court’s prior decisions regarding statutory construction. If you are confronted with such an Election Code case, which is doubtful, you will need to prove the defendant’s culpable mental state circumstantially. Frankly, that is how we prove a defendant’s culpable mental state in most cases in any event.

McClintock v. State

No. PD-0925-13                     10/1/14


When an appeals court threw out the information in a search warrant affidavit obtained via dog sniff and concluded the information in the affidavit that resulted did not make out probable cause, should it have suppressed the evidence in the case or remanded for a good-faith exception analysis?


The court of appeals should have remanded to the trial court to determine whether the officer relied on the dog sniff in good faith because the incident occurred before the U.S. Supreme Court’s decision in Florida v. Jardines, 133 S.Ct. 1409 (2013). Read the opinion.


This decision is not a holding that the good-faith exception can be used to save a search warrant tainted by a “dog sniff.” It is only a holding that the State—as the non-appealing party in this case—could raise that issue for the first time on petition for discretionary review. Now the court of appeals will have to take first crack at that issue.




Gutierrez-Rodriguez v. State

No. PD-1-26-13                      10/1/14

No. PD-1027-13


When the defendant in a theft case was ordered to pay restitution for items she had not been charged with stealing, was she allowed to raise that issue for the first time on appeal?


No. She accepted the restitution requirement as a condition of probation by failing to object when she had an opportunity to do so. Read the opinion.

Concurrence (Cochran, J.):

The ruling in this case is right, but the majority opinion creates the impression that all potential issues and claims concerning restitution that are ordered as a term of probation are waived unless the defendant objects at the sentencing hearing, and this is not the case. Read the concurrence.


This is a very limited decision of error preservation, and it should not be taken as a broad holding about the scope of what restitution a defendant could be ordered to pay. It would be best for the State to ensure that all restitution that a defendant is ordered to pay—whether part of a probation condition or not—is factually based and is to be paid to an actual victim. One would expect that this defendant will now file a post-conviction writ of habeas corpus, whereby he will claim that his trial attorney rendered ineffective assistance of counsel in failing to object to the restitution.

Marsh v. State

No. PD-1034                           10/1/14


When a defendant waived his right to appeal via a plea bargain, did he also waive his right to appeal the trial court’s ruling on a pretrial motion to suppress?


Yes, provided that the waiver was so encompassing. Rule 25.2(a)(2)(A) of the Rules of Appellate Procedure does grant defendants who plead guilty as part of a plea bargain the right to appeal pretrial motions, but that right may also be waived. Read the opinion.

Concurrence (Keller, P.J.):

The court’s outcome is correct but the issue was not stated correctly. Read the concurrence.


This is not the typical case because the record here showed that the defendant expressly waived his right to appeal the trial judge’s ruling on the motion to suppress. Typically, the record will not be that clear, and it is best to let the defendant have his appeal.

Ex Parte Smith

No. WR-79,465-01                 10/1/14


May the court consider, sua sponte, whether laches should bar a claim from a habeas applicant?


Yes. Undue delay in a habeas application undermines the integrity of the criminal justice system, and the State does not have to plead the issue for a court to consider the interests of society in general when ruling on the application. Read the opinion.

Dissent (Meyers, J):

The majority is handicapping applicants and further aiding the State by not requiring the State to plead laches at all, but then forcing the applicant to show, in yet another court, why his application should not be barred. Read the dissent.


It is still best for the State to argue laches in response to an application for writ of habeas corpus that has been filed many years after the defendant’s conviction. Remember that this decision holds that a court may consider laches. It does not hold that a court is required to consider laches. But this is a very good decision that gives further insight to the court’s strong desire for defendants to raise habeas corpus claims in a timely manner.


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