Texas Courts of Appeals
Lindsay v. State
No. 02-25-00176-CR 8/27/26
Issue:
In a “fentanyl murder” case, does Penal Code §19.02(b)(4) require a culpable mental state regarding the result of the conduct?
Holding:
No. A culpable mental state is required only as to the knowing manufacture or delivery of the controlled substance. While in an intentional murder case, the jury charge language defining the culpable mental states should be limited to definitions that relate to the result of the defendant’s conduct, §19.02(b)(4) “provides that a person commits the offense of murder if the person ‘knowingly manufactures or delivers’ certain controlled substances in violation of the Health and Safety Code and a person dies as a result of introducing that substance into the person’s body.” Read opinion.
Commentary:
This is another helpful decision regarding fentanyl, focusing on whether an additional culpable mental state attaches to the death of the victim. In answering that question “No,” the court of appeals noted that “felony murder” already does not have a culpable mental state that attaches to the victim’s death. For this offense, the culpable mental state attaches to the defendant’s delivery or manufacture of the controlled substance. The decision discusses the sufficiency of the evidence showing that the defendant knew that he was delivering fentanyl, and the State put together a good deal of evidence showing just that. This decision also addresses the sufficiency of the evidence to show that the defendant was the person who delivered the fatal dose of fentanyl. As such, this decision will be of great interest to those who prosecute these offenses. Prosecutors should also look at the decision of the Dallas Court of Appeals in Johnson v. State, which was issued in February, and which held that—in a fentanyl delivery case—the State is only required to prove that the defendant knew he was delivering a controlled substance. (Read summary of Johnson here.) Because of the importance of this decision, it seems likely that the Court of Criminal Appeals will review it. The State did a very good job in prosecuting this case and defending the conviction on appeal.
State v. Isac
No. 02-26-00041-CR 8/27/26
Issue:
Did the trial court improperly grant the defendant’s pretrial motion to dismiss that challenged the constitutionality of Penal Code §36.06 (obstruction or retaliation) as applied to him before trial on the merits began?
Holding:
Yes. A pretrial motion may not be used to raise an “as applied” constitutional challenge to a statute. The defendant made several posts on X, making threats against two named Lewisville police officers (including “the second a lewisville cop tries to commit a crime against me is the second they get put on a tee”). The defendant was charged with two counts of obstruction or retaliation for threatening murder or aggravated assault against a public servant. The defendant argued that he had made no steps toward committing any unlawful act, and if §36.06 is interpreted to impose liability without proof of subjective intent, it violates the First Amendment. The State contended that the social media posts were clearly targeting two specific officers, but the judge disagreed and granted the defendant’s motion to dismiss. On appeal, the court of appeals concluded that the “as applied” claims were premature and the trial court abused its discretion in dismissing the indictment prior to trial and without the State’s consent. “For this court to hold that Penal Code §36.06 is unconstitutional as applied to [the defendant] would require that we speculate about the evidence the State would present at trial.” Read opinion.
Commentary:
This decision represents a significant trend among defendants attempting to raise what they claim are “as applied” challenges to the constitutionality of a statute (and among trial judges who are buying that argument). This decision once again makes it clear that “as applied” challenges must be raised after trial and cannot be raised prior to trial. There is only one rare exception to that rule, presented in Ex parte Perry, which stands alone based on its unique facts. The decision in this case relies upon the much more long-standing decisions of State ex rel. Lykos v. Fine, Flores v. State, and State v. Rosseau.
Announcements
Mandatory Brady Training (2026)
Has it been a while since you last watched TDCAA’s Brady training? If so, it’s time to tune into our newly updated and released Mandatory Brady Training (2026). This is the only CLE course that fulfills a prosecutor’s obligation under Gov. Code §41.111 to complete a specific course of study covering your duty to disclose exculpatory and mitigating evidence and information. Texas prosecutors are required to take this course within 180 days of becoming a prosecutor and every four years thereafter. This updated course covers not only Brady material but also delves into prosecutors’ obligations under the Michael Morton Act (CCP Art. 39.14) and Texas Disciplinary Rule of Professional Conduct 3.09. Upon completing this course, you will receive 1.25 hours of ethics CLE credit and TDCAA will certify your compliance with §41.111 to the Court of Criminal Appeals. To register for this course, click here.
Case Summaries Issue Date
Because of the Labor Day holiday on Sept. 7, this week’s edition of TDCAA Weekly Case Summaries has been published early. The next edition of Case Summaries will be released on Sept. 14. Wishing you all a great holiday weekend!