October 6, 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

Lee v. State

No. PD-0880-16                10/4/17


Can the commission of an out-of-state aggravated sexual assault support a conviction for continuous sexual abuse of a child?


No. An element of continuous sexual abuse of a child is two or more violations of the enumerated Penal Code sections. A perpetrator cannot commit an act that violates the Texas Penal Code while outside of Texas, so an act of sexual abuse that occurs outside of Texas cannot be one of the two or more required violations. Read opinion.

Concurrence (Yeary, J.):

The statutory language could be read more expansively to include a contingency to the element requirement: any act that is a violation of the enumerated Penal Code sections, or that would be a violation if committed in this state. However, there is no evidence of legislative intent to support this more expansive reading. The Legislature may add this contingency language, as it appears in other statutes, to plainly indicate its intent to include the use of out-of-state offenses. Read opinion.


This is a decision of purely statutory construction, not policy. If the Legislature intended to include the commission of out-of-state offenses within the scope of the offense of continuous sexual abuse of a child, it will need to amend the statute to make that clear. 

Ex parte Medina

No. WR-75,835-01           10/4/17


Is failure to present any punishment-phase evidence in a capital murder case deficient performance?


Yes. Defense counsel acted deficiently when she failed to present any punishment-phase evidence on the defendant’s behalf. This deficiency deprived the defendant of the right to a fair trial. Read opinion.

Concurrence (Keasler, J.):

“Cataloguing all of the ethical and professional lines trial counsel crossed in charting this course without her client’s knowledge or consent would consume far more ink than I care to spill on the matter. Suffice it to say, her ludicrous attempt to hold the trial court hostage resulted in a death sentence she was duty-bound, but did shamefully little, to oppose. It is a bitter task indeed to reward trial counsel’s unprofessionalism by giving her what she has apparently wanted all along: a new punishment hearing for [the defendant]. Still, in light of the habeas court’s finding that [the defendant] was oblivious to trial counsel’s strategy, we should not hold [the defendant] accountable for the decisions of his lawyer.” Read opinion.

Dissent (Keller, J.):

The Court is incorrect that an inquiry into prejudice is not required. Defense counsel did not entirely fail to subject the State’s punishment evidence to meaningful adversarial testing. She participated in the State’s punishment case, including cross-examining witnesses. The case should be remanded for findings on the issue of prejudice and defense counsel’s conduct evaluated under the Strickland prejudice prong. Read opinion.


This decision has no precedential value. The majority opinion is a two-page per curiam opinion that contains no analysis and is barely two pages long. Someone not already aware of this case would have to read Judge Keasler’s concurring opinion to determine what actually happened. And as Judge Keasler suggests, it is disgusting. The defendant’s trial counsel apparently did not care if she lost her law license, and the State Bar should seriously take her up on that offer.

Texas Courts of Appeals

Jennings v. State

Nos. 14-16-00062-CR to -00064-CR           9/28/17


Is a warrant that authorizes a search for both “mere evidence” and items from another warrant subdivision subject to the heightened requirements of a mere evidentiary warrant?


No. Under Criminal Procedure Art. 18.02(a), warrants can authorize a search for specific categories of items in Arts. 18.02(a)(1-9, 12) or a more general search under the catch-all Art. 18.02(a)(10). Items subject to seizure under this catch-all article are called “mere evidence,” and the warrant issued is a mere evidentiary warrant. A mere evidentiary warrant must have a supporting affidavit that meets the heightened requirements of Art. 18.01(c). A warrant issued under one of the specific categories of Arts. 18.02(a)(1-9, 12) may also authorize a search for mere evidence without being subject to the additional requirements of a mere evidentiary warrant. Read opinion.


This is a good decision. There is a good deal of statutory analysis, but not a lot of caselaw support for the court’s decision. Expect to see this decision reviewed by the Court of Criminal Appeals. Even so, it should still hold up. There is also a good discussion allowing the consideration of allegedly constitutionally protected speech to be part of the probable cause determination. Read opinion.

Grant v. State

No. 14-16-00158-CR         9/28/17


Does a defendant have standing to complain about the search of a cell phone that was gifted to a third party and subsequently stolen?


No. Only the wronged or injured party has the right to complain of an illegal search or seizure under Code of Criminal Procedure Art. 38.23. Although the defendant purchased the cell phone in question, he gave the phone to his girlfriend for her use. Because the defendant did not own the phone at the time of the theft, his legal right was not invaded, and he does not have standing to complain about the search of the cell phone. Read opinion.


This is a straightforward application of the law on standing and deference to a trial court’s findings of fact. The opinion does not state how law enforcement gained access to the stolen cell phone. If you desire to make the same argument that was made in this case, make sure that the facts line up (and that the trial judge is willing to make findings of fact in your favor).

Texas Attorney General Opinions

Request RQ-0180-KP


Is a municipal law enforcement agency authorized or required to release audio or video recordings from a body-worn camera to members of the public, members of the governing body of the municipality, and civilian employees of the municipality? And if so, when? Read request.


As more law enforcement agencies utilize body-worn cameras, more requests for the resulting recordings will be made by the public and others. This Attorney General Opinion request was made by a state legislator, so it could be that some legislation is being contemplated regarding the disclosure of such recordings. It should be noted that Occupations Code §1701.659 makes it a Class A misdemeanor for an officer to release such a recording without the law enforcement agency’s approval. There is also a general limitation on the disclosure of such recordings in §1701.660, along with provisions for the disclosure of such recordings in §§1701.661, 1701.662, and 1701.663.

Request RQ-0183-KP


Is postmortem toxicological analysis conducted pursuant to the request of a medical examiner or forensic pathologist subject to accreditation by the Forensic Science Commission? Read request.


This requests centers on the proper construction of Code of Criminal Procedure Art. 38.35(a)(4)(F).


TDCAA will host our 2017 Key Personnel and Victim Assistance Coordinator Seminar at the beautiful Westin Oaks Hotel at the Houston Galleria November 8 to 10. The seminar will include specialized tracks for key personnel and VACs, with presentations on witness fee guidelines, discovery vs. work product, tactical organization, protective orders, help for witnesses with immigration concerns, and a legislative update. For further details or to register online for the course, click here.

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