September 22, 2017

Hurricane Harvey Relief Fund – give today!

In the wake of Harvey’s devastating impact on our state, the Board of the Texas District and County Attorneys Foundation has started a relief fund to assist those prosecutor office staff members who have suffered losses. 100 percent of your donation to the fund will go directly to those who have suffered hurricane and flood damage. The Board’s intention is to run the fund-raising campaign through the Annual Criminal and Civil Law Update, and then to accept applications and get the help out to folks in early October. So please click here to help those in our profession who need your help! And if you have suffered loss and are seeking assistance, click here to download the application form. If you have any questions, call Rob Kepple at 512/474-2436.

Texas Courts of Appeals

Foster v. State

No. 10-16-00164-CR        9/13/17


May a special issue on probation eligibility be submitted to the jury during the punishment phase?


No. Jury verdicts are required to be general under Code of Criminal Procedure Art. 37.07(1)(a). There is no distinction between verdicts in the guilt/innocence phase or in the punishment phase. Special issues may nonetheless be submitted to the jury when constitutionally or statutorily mandated, such as making an affirmative finding on the use of a deadly weapon. There is no statutory requirement of an affirmative finding on the age of a child victim affecting probation eligibility. There is also no authority that submission of this special issue is constitutionally necessary. It was error to submit the special issue regarding age of the victim to the jury. Read opinion.


This is a quirky case. The court holds that the requirement of a general verdict prohibits the trial court from crafting special issues except where required by the constitution or statute. Thus, special issues on deadly weapons or intellectual disability are allowed, but a special issue on probation eligibility for sex offenders is not. The court ultimately holds that the error in submitting the issues was harmless, but did not mention one factor that seems salient—only one of the sentences in question was eligible. The others exceeded ten years and could not be probated. Prosecutors could probably obtain jury resolution of this probation eligibility issue with a simple instruction to the jury that a defendant is not eligible for probation if convicted of a specified offense and the victim was under the age of 14 at the time of the offense.



The Court of Criminal Appeals has issued a joint order with the Supreme Court of Texas giving authorization to all courts in the state to consider disaster-caused delays as good cause for modifying or suspending all deadlines and procedures in any case. Read order here

TDCAA is now shipping its 2017 code books. For more information or to place an order, visit

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected]