Texas Court of Criminal Appeals
Gutierrez v. State
No. PD-0480-24 4/16/25
Issue:
Did grammar and usage errors require reforming a judgment to a lesser-included offense?
Holding:
No. Even though the defendant’s indictment contained grammatical mistakes, it sufficiently tracked the required language in the aggravated sexual assault of a child statute (Penal Code §22.021(a)(2)(B)). The Court also concluded that “subsection (f) of §22.021 of the Penal Code creates two different statutory elements that the State can prove to allege an offense for super aggravated sexual assault of a child.” Read opinion.
Commentary:
Even though the State ultimately prevailed in this case, this decision is an important reminder for prosecutors to check indictment language against the actual statutory language. This is especially true in cases, like this, where the various instances of statutory language from which to choose can get quite complicated. The way that the offense was pleaded in this case made it look like the State was choosing from two different subsections to the sexual-assault statute in order to allege that the defendant’s conduct was without the victim’s consent. This decision will be helpful because it establishes—once again—the proper way to review the sufficiency of the evidence, even when the indictment language may be faulty. This decision also important because it discusses whether an additional allegation that increases a defendant’s punishment (or raises the mandatory minimum) is an element of an offense, and not just an enhancement. This decision makes it clear that, in reaching such a conclusion, a court must look to the decisions of the United States Supreme Court in Apprendi and Alleyne.
Glover v. State
No. PD-0514-24 5/18/25
Issue:
Can a pocketknife be considered a deadly weapon?
Holding:
Yes. The jury in this case could rationally have concluded that the defendant’s display of the pocketknife—regardless of whether he actually “brandished” it—constituted a “use or exhibition” of it “to instill in the complainant apprehension, reducing the likelihood of resistance” to his escaping with the stolen merchandise. The fact that the defendant actually used the pocketknife for another purpose (here, to sever the nylon strap of a soft-side cooler) does not detract from the rationality of a jury’s finding that he also “used or exhibited” it for the purpose of convincing the victim to abandon the cooler and let the defendant escape with it. Read opinion.
Concurrence (Walker, J., joined by Schenck, P.J., Finley and Parker, JJ.):
“I agree with the Court that the evidence was sufficient to support [the defendant’s] conviction for aggravated robbery with a deadly weapon, namely, his pocketknife. A pocketknife, although not ‘a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury,’ can be something that in the manner of its use or intended use is capable of causing death or serious bodily injury.’ I write separately because [the defendant’s] ‘use’ of the knife is somewhat confusing.” Read concurrence.
Commentary:
In this decision, at the bottom of page 9, the majority relied on the defendant’s words and his proximity to the victim to show that the defendant used the pocketknife as a deadly weapon. This is a good decision on the nature of a non-firearm weapons as deadly weapons as well as an important reminder to courts to give the appropriate deference to fact-finders in making these kinds of deadly weapon findings.
Texas Courts of Appeals
Llanas v. State
No. 03-22-00745-CR 4/11/25
Issue:
Did an affidavit to search the defendant’s cell phone sufficiently allege facts connecting the phone to a murder or contain evidence of the murder?
Holding:
Yes. While the affidavit did contain “generic boilerplate language” about cell phone use among criminals, the affidavit also established a nexus between the cell phone and facts tying the defendant and his phone to a string of drive-by shootings. The court concluded that a magistrate could have concluded that there was a fair probability that the cell phone contained evidence associated with the defendant’s use of social media, which touted gun use and violence. The court also noted that CCP Art. 18.0215 does not require a nexus between the cell phone and “the specific offense at trial.” Read opinion.
Commentary:
After the decision of the Court of Criminal Appeals in Stocker, courts have been given direction to find support for a finding of probable cause for a warrant to search the contents of a suspect’s cell phone. The court’s prior decision in Baldwin proved far too confining. Nevertheless, it seems that this particular warrant would have satisfied even the stricter nexus requirements of Baldwin. The officers in this case had been shown the murder defendant’s Facebook profile, which included a photograph of him holding guns and cash, and another photograph in which the defendant held a handgun and stated that he was dreaming about using the weapon. In another post, the defendant bragged about a shooting and said he was planning another shooting. The magistrate in this case clearly could have concluded that the defendant used his cell phone to record these posts and that his cell phone could likewise contain evidence of the charged offense.