Texas Court of Criminal Appeals
Ex parte Lucio
No. WR-72,702-05 9/24/26
Issue:
Was a defendant convicted of capital murder for killing her 2-year-old daughter entitled to a new trial because of a Brady violation by the prosecution?
Holding:
No. Although the trial judge recommended habeas relief and a new trial for the defendant, the Court in a per curiam opinion “decline[d] to adopt any of the habeas court’s findings and conclusions, which exclusively reflect [the defendant’s] interpretation of the evidence and are often unsupported. Instead, we take on our role as the ultimate factfinder in habeas cases and dispose of [the defendant’s] remanded allegations based upon our independent review of the record.” The Court concluded the defendant had failed to show that the State suppressed evidence (a report by a CPS investigator and statements made to officers by members of the defendant’s family) or that the evidence was material to guilt or punishment. Read opinion.
Concurrence (Richardson, J., joined by Parker, J.):
“Despite an eleventh-hour opportunity to fill in the evidentiary gaps, [the defendant] voluntarily waived all live evidentiary hearings by agreement. [The defendant] simply provided this Court with affidavits to determine if she was entitled to relief. Not a single witness was called. No new law has been decided or promulgated that would justify overturning the jury’s verdict. After a thorough examination of the entire record, I join the Court in finding that [the defendant’s] claims are not meritorious.” Read concurrence.
Concurrence (Parker, J., joined by Richardson, J.):
“The child victim was beaten to death. Bruising and other injuries could be seen across the child’s entire body—on the head, neck, back, buttocks, chest, arms, hands, legs, and feet. These injuries also included bite marks and missing hair from the scalp. The emergency-room doctor said that, in his 30 years of practice, the child’s injuries—covering over 90 percent of the child’s body—were ‘the absolute worst that I’ve ever seen.’ [The defendant] maintained that the head injuries that led to the child’s death were accidental—due to a fall from a stairway—but this story evolved over time. Regardless of which version of her story one examines, however, none can explain the widespread nature of the injuries, nor can they explain certain specific types of injuries the child suffered—being bitten and having her hair pulled out.” Read concurrence.
Dissent (Schenck, P.J.):
“Death is different. … The trial court has twice now returned to us from remand urging that we grant [the defendant] habeas relief with agreement from both parties on multiple grounds. Today, the Court instead disregards and disturbs those recommendations, despite the level of deference to which we owe them and denies [the defendant] habeas relief. … Where I appear to disagree with my colleagues is with the legal standard applicable to trigger relief. I believe that question is materially informed by the nature of the interest— ‘life, liberty, or property’—involved and the consequences of erroneous deprivation.” Read dissent.
Dissent (Newell, J.):
The defendant “is entitled to habeas corpus relief from her conviction and sentence in this case under the Due Process clause of the Fourteenth Amendment and Article 11.071. These findings and conclusions are supported by the record. [The defendant] is at least entitled to relief on her Brady claim. Everything else is just noise. The facts in this case are devastating. This makes the State’s failure to disclose material exculpatory evidence all the more tragic. Because the Court does not grant relief on [the defendant’s] Brady claim, I dissent.” Read dissent.
Dissent (Finley, J.):
“The State concedes error and admits that the prosecutors in [the defendant’s] original trial withheld material evidence in violation of Brady. … Today, in an unpublished per curiam opinion, the Court rejects the State’s concession of error and [the defendant’s] claim in two short sentences. … In doing so, the Court’s order falls short by glossing over a key part of this case: the State’s concession of error on [the defendant’s] Brady claim. Moreover, the Court’s order wholly fails to explain why [the defendant] does not meet her burden on her Bradyclaim.” Read dissent.
Commentary:
It is often the case that when the Court of Criminal Appeals denies habeas corpus relief, the court will issue a per curiam opinion that only briefly discusses the denial of relief. That is what has occurred in this case. While a reader could get the impression that the court did very little work in reaching its ultimate conclusion, that is definitely not true in this case. In these situations, one must read the other opinions of the court (including Judge Richardson’s 132-page concurring opinion and Judge Finley’s 97-page dissenting opinion) to determine what really happened. These issues are often very fact-bound and are often, therefore, of little precedential value.
A reading of these opinions reveals a disagreement about the role of the Court of Criminal Appeals in habeas corpus proceedings. The court has repeatedly held that it is the ultimate fact finder on habeas corpus. Several of the judges who did not join the majority have urged deference to the habeas (trial) court, especially in light of the fact that the State agreed that the defendant was entitled to relief. Certainly, evidence was not turned over to the defense that should have been turned over. But a majority of the court concluded that the evidence was not material. Based upon all the evidence, that seems to be a reasonable holding, notwithstanding the clear violation of the State’s obligation to turn over crucial evidence. The facts of this case are just horrendous, and a jury has found the defendant guilty and answered the special issues so that the defendant faces the death penalty. Because of the punishment assessed, it may be that prosecutors have not heard the last of this case.
Mason v. State
No. PD-0300-24 9/24/26
Issue:
Did the court of appeals err in analyzing the sufficiency of the evidence of the defendant’s conviction for illegal voting under Election Code §64.012?
Holding:
Maybe. In 2018, the defendant was convicted of illegal voting for filling out and signing a provisional voter affidavit when she was ineligible to vote because of prior felony convictions. The defendant argued on appeal that she signed the provisional voter affidavit without reading it and therefore did not have the required criminal intent. The case bounced between the court of appeals and Court of Criminal Appeals (CCA) between 2020 and 2024, when the CCA granted the State’s petition for discretionary review. In this per curiam opinion, the CCA concluded that its earlier decision to grant the petition for review was improvident, and it dismissed the State’s petition for discretionary review. Read opinion.
Dissent (Schenck, J.):
The dissent would grant the petition, address the merits, and uphold the conviction. Presiding Judge Schenck noted that in 2021, when the defendant’s petition for discretionary review was pending, the Legislature added Subsection (c) to Election Code §64.012, which states that a person cannot be convicted of illegal voting solely upon the fact that the person signed a provisional ballot affidavit under Election Code §63.011 unless corroborated by other evidence that the person knowingly committed the offense. The amendment included effective language stating that the change to §63.011 applied retroactively, which the dissent concluded meant that “the amendment appears to apply only to this case.”
The dissent pointed out that applying the amendment to §64.012(c) to this case may violate the Texas Constitutional prohibition against special laws. “I take it as obvious that a law targeted at a class of one would amount to the most ‘special’ law imaginable. … While I have no doubt that the Legislature might make evidentiary rules to particular species of claims and cases prospectively, as such rules revisions operate as to a full class of persons yet unknown, targeting a single pending case with a retroactive change to the evidentiary standard is more than a difference in degree.” Read dissent.
Dissent (Yeary, J.):
“When this case first came before us, I disagreed with the Court’s conclusion that ‘voting’ under §64.012(a)(1) of the Texas Election Code should be construed to include casting a ‘provisional ballot’ (citation omitted). I still do. In my view, [the defendant] is guilty, if at all, only of an attempt to vote in an election in which she knew she was ineligible to vote.” Read dissent.
Dissent (Finley, J., joined by Parker, J.):
“Examining the evidence in the light most favorable to the verdict, the evidence is clearly legally sufficient to establish that [the defendant] actually knew she was ineligible to vote because of her felon status. Consequently, this court should reverse the judgment of the court of appeals and remand for further proceedings. Instead, the Court dismisses the State’s petition for discretionary review as improvidently granted without providing any explanation. The citizens of this State are owed some explanation from this Court for why it now refuses to act on the critical issue of election integrity.” Read dissent.
Dissent (Parker, J., joined by Finley, J.):
The court of appeals’s “slipshod analysis of the issue undermines the ability of the State of Texas to enforce its election laws. That court’s decision not only allows [the defendant’s] fraudulent vote to go unpunished, but its faulty analysis in a published opinion makes it more difficult to punish those who illegally vote in the future.” Read dissent.
Commentary:
The result of this decision is to leave in place the opinion of the Fort Worth Court of Appeals holding that the evidence was insufficient to support the defendant’s conviction. A legal battle that has lasted for almost a decade has concluded rather abruptly. The ultimate conclusion from all of the decisions that have been issued in this case reveal that it might be more difficult for the State to prove the defendant’s culpable mental state in illegal voting cases.
Texas Court of Appeals
Shelton v. State
No. 07-25-00297-CR 9/29/26
Issue:
Should the trial judge have suppressed evidence discovered during a purported inventory of the defendant’s truck?
Holding:
Yes. The State did not prove that the impounding agency (Texas Parks & Wildlife Department) had an inventory policy or that the game warden followed that policy in seizing methamphetamine from the defendant’s off-highway vehicle. “Warden Fisher offered only testimony that ‘a policy’ required towing when no licensed driver was nearby and required completion of an inventory sheet before a tow company received thevehicle. No written policy or standard operating procedure was ever introduced—not at the suppression hearing and not during trial. Warden Fisher testified that whatever governs these procedures resides in internal ‘General Orders’ unavailable to the public. A bare assertion that a policy exists, without proof of its substance, does not carry the State’s burden.” Read opinion.
Commentary:
This case underscores the necessity for proving a law enforcement agency’s inventory policy if the State is relying upon inventory as the basis for obtaining evidence against the defendant. If a law enforcement agency routinely conducts inventories and impoundments, that agency must develop a policy and then show that the policy was followed. At a hearing on a motion to suppress, the State then can justify the inventory based upon the adherence to the policy.
Texas Attorney General Opinions
KP-0531 9/29/26
Issue:
Can a commissioners court approve and make purchases without the approval of the county auditor? Read opinion request.
Conclusion:
A purchasing contract is void if it is executed by an individual to whom authority was not delegated to enter into the contract under Local Government Code §262.001 and if the commissioners court does not subsequently approve the contract. A void contract cannot create a debt in violation of Art. XI, §7 of the Texas Constitution. The OAG concluded that it did not have sufficient information from which to determine whether the contract at issue here was exempted from the competitive-purchasing requirements under Local Government Code Chapter 262, Subchapter C, or whether the commissioners court followed the competitive-purchasing process from those statutes.
The OAG also stated that a commissioners court may not authorize the payment of goods and services without approval of the county auditor, but the arbitrator may not arbitrarily withhold approval. Nothing in Local Government Code §113.064(a) precludes a county auditor from auditing a claim for payment for goods or services before the county receives them. And a county auditor may audit and approve a county’s purchase of a vehicle without a signed requisition, provided that the purchase otherwise complies with the law governing county finances. Read opinion.
Requested by:
Cheryll A. Jones, Kinney County Auditor
KP-0534 9/30/26
Issue:
What are the requirements for a “junked vehicle” to constitute a public nuisance under Transportation Code §683.072?
Conclusion:
Under Transportation Code §683.072, “a junked vehicle that is visible from a public place or public right-of-way is, among other things, a public nuisance.” Read opinion.
Requested by:
Renee Ann Mueller, Washington County Attorney