Texas Courts of Appeals
No. 14-19-00351-CR 9/2/21
Is a defendant charged with capital murder entitled to a jury charge instruction on lesser-included offenses when evidence in the record indicates he is guilty only of the lesser-included offense?
Yes. Because “[a]nything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge,” the majority concluded a co-defendant’s inconsistent testimony provided some evidence supporting the defendant’s intent only to kidnap and not murder the victims. Read opinion.
The dissent disagrees that the record points to any affirmative evidence negating the defendant’s lack of an intent to kill. As a result, he was not entitled to a lesser-included offense instruction and his conviction should be affirmed. Read opinion.
The majority’s opinion is a real head-scratcher. It says there’s some evidence that would support finding the appellant guilty of only kidnapping or felony murder, but it never actually says what that evidence is.
According to the majority, the shooter testified that 1) there was no initial plan to kill the victims, 2) the defendant “later told [him] … to take [the victims] to the back of the … property and kill them,” and 3) the shooter “alone drove [the victims] to the back of the property and killed them.” The majority concludes that a jury could find from that testimony “that the group decided to kidnap [the victims] but [the shooter] alone decided to kill them.”
But testimony that the shooter alone did something isn’t testimony that he alone decided to do it. As the dissent points out, the majority opinion never identifies any testimony that the defendant lacked the intent to kill when the murder occurred. Instead, the majority points only to its own conclusion that the testimony was “inconsistent,” without ever actually explaining how the inconsistencies could prove that the appellant lacked the intent to kill.
The majority shows its hand when, responding to the dissent, it says, “the jury could have believed [the shooter’s] testimony that the group decided to kidnap complainants but disbelieved his testimony that [the defendant] was involved in a plan to kill them.” But a jury’s disbelief of evidence isn’t evidence. (Just run a Westlaw search for the phrase “it is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense,” if you need a long list of citations.) Expect the State to file a petition for discretionary review in this case.
No. 11-20-00144-CR 9/2/21
Was detaining a defendant after a traffic violation for 38 minutes until a canine unit arrived on the scene per se unreasonable under the Fourth Amendment?
No. In this case, specific facts articulated by the officer established reasonable suspicion of other criminal activity, and because the officer requested the canine unit immediately to dispel his suspicion, extending the detention of the defendant and his vehicle was justified. The Court also noted that because smaller and more rural law enforcement departments in many cases lack resources such as canine units, the delay can be longer than in urban departments but can still be reasonable. Read opinion.
A great opinion, and great work by the State in pursuing this appeal. This case is as straightforward an application of the de novo standard of review for questions of law as you’re going to get. The State can face an uphill battle in appealing a granted motion to suppress, because the deferential standard of review on appeal usually favors the appellee. But there’s one big exception: when the trial court is dead wrong about a pure question of law that doesn’t depend on witness credibility, the trial court gets no deference at all. That happened here. The arresting officer articulated numerous objective facts that didn’t require a credibility determination. Those facts, as a matter of law, gave reasonable suspicion of criminal activity other than a traffic violation. That suspicion permitted the officer to extend the investigation. The court’s discussion of the delay for a canine search, meanwhile, is an excellent example of how to analyze the delay’s reasonableness under the circumstances when, as here, reasonable suspicion exists.
No. 02-19-00386-CR 9/2/21
Was a search warrant for an alleged “pill mill” pharmacy, which was signed by a municipal court judge after a controlled buy, invalid under Code of Criminal Procedure Art. 18.01(d) because a district judge had previously signed a similar search warrant for the same pharmacy one month earlier?
No. It is true that Art. 18.01(d) does not allow a municipal court judge to issue a “subsequent search warrant” under Art. 18.02(a)(10) “to search the same person, place, or thing subjected to a prior search under Article 18.02(a)(10),” but this limitation does not apply where, as here, the search warrants were not issued only under Art. 18.02(a)(10), and, even if they were, the second warrant authorized “a specific search for specific items relating to a new offense, supported by new probable cause allegations.” Read opinion.
This opinion is lengthy and ultimately decides that the CCA will have to decide this issue. The court of appeals purports to construe the “subsequent search warrant” limitation in 18.01(d) using the framework that the CCA set out in Watkins v. State (which construes the Michael Morton Act). The court concludes that the statute means what it says: only the specifically-listed judges can issue subsequent evidentiary search warrants.
But then the court hedges: It concludes that the warrants here were not mere evidentiary search warrants because they both authorized police to search for things that are listed in the other subparagraphs of Art. 18.02(a).
That should have been the end of it, but the court also went on to decide whether the second warrant was “subsequent,” which—if it was also merely evidentiary—would have meant that the municipal court judge couldn’t issue it. And here the opinion gets murky. The court sets out several prior cases from the ‘80s and ‘90s, with the caveat that “none [are] directly on point with the facts of the instant case.” Then the court decides to adopt those cases’ “flexible approach” to the statute, which it describes as, “if the Legislature’s goal was to prevent repeated and harassing general exploratory searches of the same person, place, or thing, then a specific search for specific items relating to a new offense, supported by new probable cause allegations, should not be foreclosed merely because the officer asks the wrong judge for the warrant.” This sentence doesn’t make sense, though. If the court means to hold that the allegations of a new offense mean the warrant isn’t “subsequent,” then the officer didn’t ask “the wrong judge” for the warrant. Therefore, view this holding with caution. And, as the court finally notes, “it is the prerogative of the Court of Criminal Appeals to determine where the line should be drawn.” Expect the CCA to do so.
Texas Attorney General Opinion Request
Does Executive Order GA-38 create a right, privilege, power, or immunity for individuals to be free from a requirement or mandate to wear a face covering?
Dee Hobbs, Williamson County Attorney