October 5, 2018

Texas Court of Criminal Appeals

Marks v. State

Nos. PD-0549-17 to PD-0551-17                 10/3/18


Do indictments for acting as a guard company without a license toll the statute of limitation for amended indictments for accepting employment as a security officer to carry a firearm without a security officer commission?


No. A prior indictment tolls the statute of limitation for an amended indictment “when both indictments allege the same conduct, same act, or same transaction.” Here, the original indictments alleged the operation of an unlicensed business. They do not require that the defendant carried a firearm or entered into an agreement to do so as alleged in the amended indictments, and the amended indictments do not require that the defendant actually provide security services as the original indictments do. These indictments do not allege the same conduct, act, or transaction, and the statute of limitations is not tolled. Read opinion.

Dissent (Keasler, J.):

“I disagree that the two sets of indictments alleged impermissibly divergent conduct. Both sets of indictments targeted the same three incidents, on the same three dates, arising from the same set of facts, made criminal within the same Private Security Act. … Because they often have ‘nothing to do with the guilt or innocence of the persons charged,’ Hernandez [v. State, 127 S.W.3d 768] sought to limit the impact that ‘procedural errors and defects in form’ would have on the State’s ability to re-indict an offender. To that end, Hernandez instructs us to construe Article 12.05(b) ‘broadly.’ Today’s opinion takes a decidedly narrow view of what that statute permits.” Read opinion.

Dissent (Yeary, J.):

The plain language of Code of Criminal Procedure Art. 12.05(b) allows the pendency of any indictment to toll the statute of limitation without qualification. The Court should not have attempted to fill a perceived “gap” in the statute by imposing a notion of relatedness between the original and later indictments. “The competing opinions today can agree on no particular definition of ‘same transaction’—a phrase we have found elusive in other contexts. … Rather than take a side in this debate, I would revisit Hernandez, acknowledging that it was wrong at its inception, it is not proving particularly workable, and it should be overruled.” Read opinion.


This decision definitely retreats from the broad reading of Article 12.05(b) that the Court of Criminal Appeals had adopted in Hernandez. There is not much analysis in the majority’s opinion, but the majority does not purport to overrule Hernandez. Nevertheless, based upon this decision, prosecutors should be very cautious in the future about alleging a new offense out of the same transaction and expecting the first or un-amended indictment to toll the statute of limitations. 

Briggs v. State

No. PD-1359-17                                 10/3/18


Is a defendant’s plea involuntary when subsequent changes in law would have made her decide to exercise her right to a jury trial?


No. A defendant who accepts a plea agreement and waives the right to a jury trial does so under the law existing at the time of the plea. A subsequent change in the law does not amount to a misrepresentation of the law on defense counsel’s part. Here, the defendant pled no-contest to intoxication manslaughter of a peace officer in 2012. At the time, her blood was drawn under “mandatory blood draw” statute. This statute, Transportation Code §724.012, was found unconstitutional in 2014. While State v. Villareal, 475 S.W.3d 784, applies retroactively, it does not have any bearing on the voluntariness of a plea prior to 2014. Read opinion.


This decision is not about whether the defendant’s blood test results were properly admitted. Rather, the sole issue is whether the defendant’s plea of no-contest back in 2012 was voluntary when it was made. At that time of the defendant’s plea, Missouri v. McNeely and State v. Villareal had not been decided, and mandatory warrantless blood draws and implied consent were the law of the land. The facts of this case are particularly brutal, and it seems clear that the State would have easily been able to prove intoxication manslaughter, even without the blood test results.

Texas Courts of Appeals

State v. Drury

No. 02-17-00273-CR                         9/27/18


May an officer search an item held by the defendant as a search incident to arrest?


Yes. During an arrest an officer may search objects “immediately associated’ with the arrestee, such as wallets, purses, and backpacks. A small container held by the defendant at the time of arrest, here a tin can, is immediately associated with the arrestee and may be searched incident to the arrest. An indication that the arrestee possesses weapons or evidence is not required to search his person and immediately associated objects. Read opinion.


This is a very well-researched decision. Prosecutors should definitely read it and the decisions that it cites to learn more about the search-incident-to-arrest exception when the item searched was in the defendant’s possession.


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.