September 15, 2023

Texas Supreme Court

In the Matter of TVT

No. 22-0388                      9/8/23


Must the State prove that the victim did not consent in order to show that a child under 14 had the required intent to commit aggravated sexual assault of another child under 14?


No. The court of appeals mistakenly relied on In re B.W., 313 S.W.3d 818 (Tex. 2010), which held that a child under 14 may not be prosecuted for prostitution because children lack the legal capacity to consent to sex. The Supreme Court also rejected the defendant’s argument that it would create an absurd result to apply Penal Code §22.021 when both children were under 14 and the conduct was consensual. “The absurdity doctrine is not remotely applicable. … The Legislature could have concluded—and by all indications did conclude—that engaging in the prohibited conduct with a child under 14 is sufficiently serious that the victim’s consent is irrelevant regardless of the accused’s age.” Read opinion.


Following the theme initiated in State v. R.R.S., wherein the Texas Supreme Court held that juveniles under 14 are legally capable of committing aggravated assault, this case rounds-out the jurisprudence that establishes that a juvenile cannot escape culpability for committing aggravated sexual assault of a child under 14 just because the offender is under 14, himself.  As the Court explains, a child’s inability to legally consent to sex because of his age does not prevent that child from developing the mens rea necessary for aggravated sexual assault of another child.  Additionally, the child-victim’s supposed consent to the sexual conduct is neither a defense (because the child-victim is under 14 and cannot legally consent) nor relevant to the analysis of whether the child-offender had the requisite mens rea to commit the crime.  Lastly, the Court refused to “legislate from the bench” and judicially create a proximity-in-age exception to the application of the statute proscribing aggravated sexual assault of a child to a child-offender under 14, explaining that “the Legislature intended to prohibit the specified conduct and to deem it delinquent even between children close in age.”  If you prosecute sex crimes against children (whether in the juvenile arena or not, because juvenile cases are often transferred to adult district courts for prosecution), you should read this case.  It is concise, clear, and worth your time.

Texas Court of Appeals

Mayfield v. State

No. 02-22-00199-CR                       9/7/23


Is the “lawful unit of prosecution” under Penal Code Section 32.51 (fraudulent use or possession of identifying information) based on the number of pieces per identity, or by the number of pieces of identifying information in total held by the defendant?


Number of items, regardless of the number of persons to whom the information belonged. Section 32.51 is a state jail felony if the number of items obtained, possessed, transferred, or used is less than five, but it is a third-degree felony if the defendant has five or more but less than 10. Because the defendant had seven separate items of identifying information from two different people, the State properly charged him with a third-degree felony under the statute. Read opinion.


As the appellate court notes, the plain language of Section 32.51(c) establishes that it is the number of individual pieces of identifying information that a person unlawfully possesses or uses that determines the level of the offense—not the number of persons defrauded or victimized.  The appellate court’s analysis here is sound and consistent with another intermediate appellate court’s treatment of a related issue pertaining to the same statute; thus, you should expect this decision to hold up even if the defendant seeks discretionary review with the Texas Court of Criminal Appeals.

Veal v. State

No. 01-22-00285-CR                       08/31/23


Does probable cause to search for information on a seized cell phone become stale if the phone was held in evidence for months before a search warrant was obtained?


No. The court held that the probable cause facts were not stale, because the trial court could have inferred from the affidavit that depositing the phone with authorities the day the defendant was arrested for burglary had the effect of freezing in time the phone’s contents. Read opinion.

Dissent (Goodman, J.):

The defendant “established the search warrant for her cell phone was issued in violation of her Fourth Amendment rights because the State seized her cell phone for an unreasonable amount of time before obtaining the search warrant, and the State did not meet its burden on appeal to show this violation was harmless beyond a reasonable doubt, so [the defendant’s] conviction should be reversed. I, therefore, respectfully dissent.” Read dissent.


The majority’s ruling is premised upon the foundational principle that “[p]robable cause ceases to exist when, at the time the search warrant is issued, it would be unreasonable to presume the items remain at the suspected place.”  The majority then logically observes that not all evidence is the same and that some evidence “is of the sort that can reasonably be expected to be kept for long periods of time in the place to be searched’—e.g., information or data in a cellphone or other electronic device (computers, iPads, Apple watches, etc.), which is often kept for extensive periods of time or indefinitely.  Especially because there are few other Texas cases on this subject, this opinion will be very important to you if any of your cases feature a delay between the seizure of a cellphone (or other electronic device) and when the police seek a warrant to search it, as might occur because of an investigator’s heavy workload, because the investigator does not immediately see the evidentiary potential regarding the device, or for myriad other reasons.  In that event, do as much as you can to lay out facts in the search warrant affidavit to establish that the seized electronic device was/is being kept in a secured manner during the delay timeframe—such that it would be reasonable to expect that the data or information sought still remains on the device—but recall from this opinion that the trial court or magistrate (as well as the reviewing court) may make reasonable inferences to bridge some logical gaps in the facts recited.

Walker v. State

No. 14-18-00601-CR                       8/31/23


Was defense counsel ineffective for failing to more fully investigate the complainant’s mental health history and impeach the complainant’s credibility with evidence of her history of mental health issues?


No, the court held that the fact that the victim had been diagnosed with some mental illnesses does not make the evidence admissible, particularly in light of the expert’s testimony that the “need to further explore the possibility” of fabrication or embellishment and the victim’s bipolar disorder did “not necessarily” impact credibility. Read opinion.

Dissent(Hassan, J):

The dissent would find that the defendant’s trial counsel did not reasonably investigate the facts of this case or the complainant’s mental health issues despite the importance of her credibility to the verdict. Read dissent.


The majority’s holding is based on a determination that the defendant was not prejudiced by his defense counsel’s failure to investigate further or do more at trial concerning the complainant’s mental health history.  This ruling is fact-specific and turns largely on:  (1) the appellate court’s proper deference to the trial court’s findings of fact that the expert testimony presented in the motion-for-new-trial hearing equivocated on whether the complainant’s mental health issues would actually have impacted her credibility, and that other records of the complainant’s mental health history would not have been relevant; and (2) the fact that the State’s evidence showing the defendant’s guilt was very strong.  This opinion serves as a good reminder that, despite that defendants will often argue after-the-fact that their trial counsel should have done more, an appropriate assessment of counsel’s performance must examine how the attorney’s conduct actually related to the facts and evidence of the case.

State v. Flores

No. 04-22-00513-CR                       8/30/23


Does the federal statute criminalizing bringing in or harboring certain noncitizens (8 U.S.C. §1324) pre-empt Penal Code Section 20.05(a)(1)(A) (Smuggling of Persons)?


No. “We hold that despite the state legislative history and Congress’s possible intent to preempt state criminal statutes that directly criminalize the smuggling of noncitizens, Congress did not intend to preempt neutral state smuggling statutes like §20.05(a)(1)(A).” Read opinion.


Recall that a federal statute can preempt a state statute in three circumstances:  (1) the federal statute contains an express preemption provision; (2) the state statute intrudes upon a field over which the federal government has exclusive and absolute governance—i.e., “field preemption”; and (3) the state statute irreconcilably conflicts with the federal statute, such that the challenged state law obstructs “the accomplishment and execution of the full purposes and objectives of Congress”—i.e., “conflict preemption”.  In this case, 8 U.S.C. § 1324 does not expressly preempt Penal Code Section 20.05(a)(1)(A), and the appellate court determined that neither field preemption nor conflict preemption apply in this facial challenge to the validity of Section 20.05(a)(1)(A) because, notably, the Texas statute applies to citizens and noncitizens alike—not just to noncitizens.  As the appellate court aptly observed, “[j]ust because some applications of [the Texas law] implicate[s] federal immigration priorities does not mean that the statute conflicts with federal law.”

The defendants will likely pursue discretionary review in the Court of Criminal Appeals and, in light of the subject matter at issue, the CCA might be interested in weighing in.  Even if not, though, we probably haven’t heard the last of this case because this opinion derives from a pretrial order quashing the defendants’ indictments, which the State appealed.  Hence, even if the defendant’s facial challenges fail either with this opinion or in the CCA, the defendants can—and likely will—pursue as-applied challenges to the validity of Section 20.05(a)(1)(A) after their trials conclude.

TDCAA seeking an Assistant Training Director

The Texas District and County Attorneys Association is seeking an Assistant Training Director. The Assistant Training Director (“ATD”) will be responsible for the creative development and production of TDCAA’s online training. The ATD will work under the supervision and direction of the Training Director. The ATD’s duties will include:

  • under the direction of the Training Director and association leadership, developing and expanding the association’s online learning opportunities
  • conducting needs assessments to evaluate and determine the online learning needs of prosecutors’ offices
  • in conjunction with the Training Committee, developing the content of TDCAA online learning
  • planning and producing all association online learning programs
  • investigating and developing varied modalities of online learning, including webinars, virtual training, and podcasts
  • making initial speaker contacts for all TDCAA online learning offerings or supervising such contacts by other staff or course directors
  • directing the preparation of all materials related to online learning initiatives and assisting in developing and editing seminar materials as needed
  • supervising the meeting planners who assist in the production, web hosting, and credit reporting of all online learning initiatives
  • evaluating the overall effectiveness of association online learning programming
  • assisting the Training Director as necessary to produce association live training events

Any applicant must be a licensed attorney in Texas for at least the past three years. Some travel will be required for live training events and production of online trainings. Some remote work is possible, but time will be required at TDCAA headquarters in Austin to accomplish needed tasks. The starting salary is $110,000, plus health care and retirement benefits.

Applicants should send a cover letter and current resume to Rob Kepple at [email protected].