October 9, 2015

Texas Court of Criminal Appeals

State v. Johnson

No. PD-0228-14                 10/7/15


Is Penal Code §42.11 constitutional?


No. The flag desecration statute is facially invalid because it is overbroad; it prohibits a substantial amount of activity meant to be protected under the First Amendment. Read.

Concurrence (Alcala, J.):

Judge Alcala concurred in the judgment and wrote to express her personal respect for the flag and the ideals it reflects. Read.

Dissent (Meyers, J.):

Judge Meyers dissented in the judgment because the defendant in this case was not engaging in any sort of protected conduct or making a political statement protected by the First Amendment. Read.

Dissent (Yeary, J.):

Judge Yeary disagreed with the Court’s decision to hold the flag desecration statute unconstitutional on its face instead of considering its constitutionality as applied. In his dissent he argues that the Texas Court of Criminal Appeals is not authorized to address challenges to the constitutionality of statutes—even in cases alleging First Amendment overbreadth—when the defendant cannot show that the statute operated unconstitutionally in his own case. Read.


It is doubtful that Texas prosecutors spend a great deal of time charging violations of §42.11 of the Penal Code, so this decision will have little impact on our everyday work. But if you ever need an indication that “conduct” could fall within the scope of “expression” covered by the First Amendment, look no further than this decision. It is extremely thorough and exhaustive in its research. Judge Yeary presents a novel approach to overbreadth jurisprudence, but—based upon the current state of First Amendment law—it is doubtful that his approach will ever capture a majority of the court. If you want to learn a lot about First Amendment law, read this decision. But be forewarned: It is lengthy and very, very detailed.

Ex parte Marascio

No. WR-80,939-01, 939-02, 939-03            10/7/15


Is the defendant entitled to habeas corpus relief on the claim that his multiple convictions for Bail Jumping and Failure to Appear violate double-jeopardy?

Holding (per curium):

No, but the per curium opinion itself did not expound on the reasons for the holding. Read.

Concurrence (Keasler, J.):

Judge Keasler would not grant relief to the defendant and writes to express his view that the Court needs to clarify its procedure in reviewing habeas claims. In general, he supports the idea that if a claim could have been brought on direct appeal, as this double-jeopardy claim could have, then the claim’s merits should not be heard on a habeas petition. Read.

Concurrence (Richardson, J.):

Judge Richardson believes that in some circumstances a double-jeopardy claim may be allowed under an 11.07 application for habeas corpus, but in this case it is not because a violation is not clearly apparent from the face of the record. Read.

Concurrence (Yeary, J.):

He writes to agree with Judge Keasler’s position—and also agrees that the Court must clarify the types of claims that are available for habeas relief. Read.

Dissent (Meyers, J):

Judge Meyers dissents because of his desire to expand access to habeas corpus. He views the new CCP articles 11.072 and 11.073 as proof that the legislature wants to expand the writ process and the per curium opinion as a way to dodge the real legal question by focusing on procedural issues. Read.

Dissent (Johnson, J.):

Judge Johnson believes that violation of double jeopardy is a constitutional violation and as such, may be raised for the first time on appeal. Additionally, she would find that there was a double jeopardy violation in this case and would consider an ineffective assistance of counsel claim against the defendant’s appellate counsel. Read.

Dissent (Alcala, J.):

Judge Alcala dissents because she believes the court should not have rejected the double-jeopardy claim based on procedural default. Additionally, she would have granted the defendant’s application for habeas corpus because the offense of bail jumping is based on a defendant’s failure to appear at a court setting, not on the number of cases pending at that time. Read.


There is no precedent provided by this per curiam opinion with no analysis. It is interesting only in the large number of concurring and dissenting opinions that the case generated. A review of these various decisions reveals no significant dispute about any principle relating to double jeopardy, but there is a significant dispute among the members of the court about the ability of a defendant to raise an issue by way of a post-conviction writ of habeas corpus that could have been raised (but was not) by way of a direct appeal. If the court changes habeas corpus law in that regard, it will have begun in these various opinions. Better yet, if you want the court to change its view of habeas corpus law, use the language and approach of these decisions. Stay tuned: More will be coming about this in the future. And do not think that it will not affect our practice—what the court ultimately decides could have an effect upon pre-trial and probation writs of habeas corpus as well.

Ex parte Cooke

No. WR-81, 360-01           10/7/15


Was the defendant entitled to habeas corpus relief on an offense for which he had already served his sentence, due to suffering a “collateral consequence of his conviction”?


No. The defendant challenged a final conviction in Tarrant County for family-violence assault and alleged that he is suffering a “collateral consequence” from that conviction, namely that it served to enhance a new offense for family-violence assault in Hood County. Because family-violence assault does not require a final conviction, and probation or deferred adjudication can be used as enhancements, the defendant is not suffering a collateral consequence of his final conviction—the Tarrant County offense could have been used as an enhancement regardless of whether it was ever adjudicated. Read.


You will be hard-pressed to use this decision as precedent in the future—it is very, very fact specific. But if you want to read a decision in which the court denies relief to a defendant, even though everyone involved in the case believed that the defendant was entitled to some sort of habeas corpus relief, then this decision is for you.

Cornwell v. State

No. PD-1501-14                 10/7/15


In a prosecution for Impersonating a Public Official under Penal Code §37.11(a)(1), must the State prove that a defendant engaged in a “pretended official act” in addition to falsely holding himself out as a public servant?


No. The reliance theory of §37.11 requires the State to show evidence that the appellant had the specific “intent to induce another … to rely on his pretended official acts,” but this does not require evidence of a second overt act as an element. In this case, the defendant’s claims of former conduct undertaken as a district attorney were enough to show his intent that the recipient of his phone call rely on them when making her decision in a criminal case. Read.


This is yet another prosecution that does not take place often in Texas. So—by definition—this has now become one of the leading cases on §37.11 of the Penal Code. Keep this decision handy in the rare circumstance in which you need to charge a defendant with violating this statute.

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