September 28, 2018

Texas Court of Criminal Appeals

Carson v. State

Nos. PD-0205-17 to PD-0208-17                 9/19/18


Is a pre-sentence waiver of appeal valid in exchange for the State’s waiver of a jury trial?


Yes. A defendant may knowingly and intelligently waive the right to appeal as part of a plea when consideration is given by the State, even if a sentencing recommendation is not a part of the agreement. Here, exchanges between the defendant and the prosecutor made it clear that the defendant did not wish to go to trial and the State would waive jury trial only if there were no possibility of appeal. The State’s agreement to sentencing by the trial court was valid consideration for the waiver of appeal. Read opinion.

Concurrence and Dissent (Keller, P.J.):

“The Court holds that [the defendant] validly waived his right to appeal, but then it remands the case for the court of appeals to decide whether [the defendant] meets an exception to the waiver rules. … All that is required of an explicit waiver of appeal is that the waiver be made voluntarily, knowingly, and intelligently. Because [the defendant] executed an explicit waiver of appeal, the [claimed exception] cannot provide [the defendant] the relief that he seeks. I concur in the Court’s decision to reverse the court of appeals’s judgment on the basis that [the defendant] validly waived his right to appeal, but I dissent from the decision to remand for further proceedings.”  Read opinion.

Concurrence and Dissent (Yeary, J.):

“I agree that the judgment of the court of appeals in this case must be reversed, and I concur in the Court’s judgment today to that extent. But I agree with Presiding Judge Keller that a remand is unnecessary, for the reasons she explains. Moreover, the Court should not remand the cause to the lower appellate court without also addressing the State Prosecuting Attorney’s (SPA) fourth ground for review, because a resolution of that claim in the SPA’s favor would moot any necessity for a remand in any event.” Read opinion.


Waivers of appeal in criminal cases are increasingly important to the criminal justice system as the Texas population continues to increase. Texas had roughly 14 million residents when the Legislature increased the number of appellate justices to 80 and transferred direct criminal appeals from the Court of Criminal Appeals to the courts of appeals. Since then, the state’s population has about doubled, and the appeals docket has increased about 30 percent, but the number of appellate justices remains the same. Criminal cases, which in 1982 accounted for about 60 percent of the appeals docket, now account for about 45 percent of the appeals docket. Waivers of appeal in criminal cases, which became more common in Texas after the CCA’s decision in Blanco v. State, 18 S.W.3d 218 (Tex. Crim. App. 2000), obviously play a role in the shrinking number of criminal appeals in the appellate system since 2000. The Court’s endorsement of the waiver in this case is not surprising.

Ette v. State

No. PD-0538-17                 9/19/18


Is a trial court’s imposition of a fine assessed by a jury proper despite the court’s failure to orally pronounce it?


Yes. A trial court must orally pronounce all sentences, including fines, in the defendant’s presence. If the sentence orally pronounced differs from the sentence written in the judgment, the oral pronouncement controls. However, a trial court has no authority to alter a jury’s lawful verdict on punishment. The oral pronouncement does not control when a jury assesses the conflicting aspect of the punishment and the jury verdict has been correctly read aloud in the defendant’s presence. Read opinion.


This battle in the war between sentences and judgments goes to the judgments.

Ex parte Garrels

No. PD-0710-17                 9/19/18


Can consent to a mistrial be implied from the totality of the circumstances when a defendant does not object to the trial court’s declaration of a mistrial?


Yes. As a general rule, retrial is barred after a mistrial unless the defendant consented to the mistrial or the mistrial was based on some “manifest necessity.” The trial judge is not required to admonish the defendant about his double jeopardy rights, but a defendant’s consent must appear in the record as a “deliberate relinquishment.” An appellate court may still find that a defendant consented to mistrial even if the trial court characterizes the mistrial as a sua sponte act. Here, however, the State did not show that the defendant consented to the mistrial because it offered no evidence other than that the defendant did not object. Read opinion.


The advent of the Michael Morton Act is going to create more disputes like this. Remember that trial courts are supposed to exclude evidence for discovery violations only when they find that a prosecutor willfully violated a discovery order. Francis v. State, 428 S.W.3d 850 (Tex. Crim. App. 2014). What facts we see in this opinion do not seem to indicate willful misconduct by the State, so there was little need for the trial court to declare a mistrial or grant a continuance.

Hernandez v. State

No. PD-1049-16                 9/19/18


Is a variance between the indictment and the evidence presented describing the manner and means by which a defendant caused bodily injury material?


No. The manner and means are immaterial when they do not “define or help define the allowable unit of prosecution.” An allowable unit of prosecution is either defined by the legislature or described by the gravamen of the offense. The offense of aggravated assault with a deadly weapon is result-oriented and the relevant elements are the victim and the bodily injury that was inflicted, not the manner and means by which the assault is committed. A variance regarding the use of hands to cause bodily injury (e.g., striking vs. strangling) is an immaterial, non-statutory allegation that describes the offense. Read opinion.


This opinion affirms a prior opinion by the Court in the same case. On rehearing, the Court reaffirms that there was no fatal variance between the allegations and proof at trial. The Court rejects the idea that the allegations of conduct in the indictment are part of the “unit of prosecution” for assault. Rather, the injury is the unit of prosecution. The Court also rejected a notice claim and a claim that inconsistent verdicts between the multiple counts rendered the evidence insufficient.

Wood v. State

No. PD-1100-17                 9/19/18


Is a sentence of life imprisonment on a conviction of attempted capital murder illegal when the indictment failed to allege an aggravating factor?


No. If an indictment charges a complete offense, the State is held to the offense charged in the indictment. An indictment for criminal attempt, however, is not fundamentally defective for failure to allege the constituent elements of the offense attempted. Here, the indictment properly charged attempted capital murder even though it failed to state an aggravating factor, and the sentence of life imprisonment falls within the punishment range. Read opinion.


The law was well-settled that an attempt indictment need not allege all of the elements of the attempted offense. This case firmly reiterates that.

Ingerson v. State

No. PD-1445-16                 9/19/18


Is evidence that the defendant was the last person seen with the victims, had a motive for the shooting, fled the scene, owned the same caliber gun as the murder weapon, and had gun residue on his clothing and car sufficient to support a conviction for capital murder?


Yes. When identity is at issue in a case, it may be proven by direct evidence, by circumstantial evidence, or by reasonable inferences from the evidence. Here, the individual circumstances of guilt viewed in isolation might be insufficient to support a conviction, but when considered cumulatively, a jury may reasonably conclude that the defendant committed the capital murder. Read opinion.


Ingerson is a must-read for prosecutors with a circumstantial or “no body” murder trial on the horizon. Together with Nisbett v. State, 552 S.W.3d 244 (Tex. Crim. App. 2018), this case seems to represent something of a crackdown on courts of appeals reversing murder cases on sufficiency of the evidence grounds. This leaves Stobaugh v. State, 421 S.W.3d 787 (Tex. App.—Fort Worth 2014, pet. ref’d) as an outlier in the spectrum of circumstantial or “no body” murders.

Smith v. State

No. PD-0514-17                                 9/26/18


Does a general notice of appeal from adjudication serve as notice of appeal from a subsequent order granting shock probation?


No. An appeal of an order granting shock probation is independent of an appeal from adjudication and formal sentencing. A general notice of appeal does not act as a place holder for any appealable order that might be entered later. Read opinion.


This decision will mainly be of interest to appellate practitioners.

Texas Courts of Appeals

Drayton v. State

No. 14-17-00452-CR                         9/20/18


May a search warrant for a vehicle authorize a brief search to determine ownership of a phone found in the car?


Yes. A search conducted pursuant to a warrant may be “as extensive as is reasonably required to locate items described in the warrant.” Officers conducting a search may sometimes open items or containers not specifically authorized by the search warrant. Here, the search warrant specifically authorized the seizure of cell phones that would “establish the identity of additional suspects” and “property belonging to the [robbery victims] such as cell phones.” Officers were reasonably within the scope of the search warrant by opening the phone to view the “owner profile” because establishing ownership of the phone was directly related to the objectives of the search warrant. Read opinion.


This will be a very useful opinion for investigating officers and prosecutors. That said, in light of the comparative newness of Riley v. California, 134 S.Ct. 2473 (2014), Carpenter v. United States, 138 S.Ct. 2206 (2018), and Code of Criminal Procedure Art. 18.0215, it is likely that the Court of Criminal Appeals will review this case.

Texas Attorney General Opinions

Opinion No. KP-0213                       9/24/18


What are the obligations of a criminal district attorney under Code of Criminal Procedure Art. 39.14 to disclose to a defendant information obtained by the criminal district attorney during the performance of certain civil duties?


A court would likely conclude, as one appellate court already has, that the knowledge of an assistant criminal district attorney is imputed to the elected—or criminal—prosecutor as “the State” for purposes of Code of Criminal Procedure Art. 39.14 regardless of internal division affiliation.

To the extent information provided to an assistant criminal district attorney acting in a civil capacity constitutes an item described by Art. 39.14(a) but is protected by the attorney-client privilege, the plain language of subsection (a) would exempt its disclosure to the defendant. However, a court would likely conclude that any exculpatory information meeting the requirements of Art. 39.14(h) obtained by such an attorney must be disclosed to the defendant, notwithstanding any attorney-client or other evidentiary privilege.

To the extent that information obtained by an assistant criminal district attorney acting in a civil capacity is confidential under Family Code §261.201, any duty of disclosure in Art. 39.14(a) would not be triggered except pursuant to court order obtained under §261.201(b) or (c). A court would likely conclude that any exculpatory information obtained by an assistant criminal district attorney that meets the requirements of Art. 39.14(h) but that is made confidential by §261.201 shall be disclosed only pursuant to court order obtained under §261.201(b) or (c). Read opinion.


The Attorney General found that internal divisions in the prosecutor’s office will not change the prosecutor’s paramount duty to see that justice is done and to ensure the accused receives a fair trial by timely and complete disclosure of favorable evidence. If prosecutors must get a court order to meet these duties, then they must do so.


New mandatory Brady training available online

TDCAA’s new state-mandated Brady training video is now available online through our website. As required by that statute (which went into effect on January 1, 2014), every attorney prosecuting a jailable criminal offense must complete one hour of instruction on a prosecutor’s duty to disclose such evidence and information within 180 days of assuming those duties, and Court rules require prosecutors to take a refresher course in the fourth year after completing that initial course. Our new 2018 course satisfies either requirement, and successful completion of the course will be recorded by TDCAA and shared with the Court as proof of satisfying this state mandate. Those who complete the course will also receive one hour of MCLE ethics credit from the State Bar of Texas. Visit our homepage to access and complete this course.

Become a member of the National Black Prosecutors Association

The NBPA is in the middle of a membership drive, and dues are discounted through the end of September at this link. Although the NBPA targets the recruitment and retention of black prosecutors, membership is open to everyone who supports that mission.