September 30, 2022

Texas Court of Criminal Appeals

State v. Stephens

Nos. PD-1032-20 & PD-1033-20         9/28/22


Should the Court grant the Attorney General’s motion for rehearing in its Dec. 15, 2021 opinion holding that Election Code §273.021, which grants the Attorney General the unilateral power to prosecute select election-law violations in district and inferior courts, is an unconstitutional violation of the separation of powers clause? (See original case summary here.)


No. The Court denied the Attorney General’s motion for rehearing without a written opinion.

Concurrence (Walker, J.):

The concurrence wrote separately to publicly warn those who objected to the Court’s original opinion that their preferred result “would be giving every future Attorney General the power to bring possibly fabricated criminal charges against every candidate running for public office in the State of Texas who disagrees with the Attorney General’s political ideals.”

The concurrence also rejected the novel “duties versus powers” theory proposed in Judge Slaughter’s dissent for creating an irreconcilable conflict. “The power given to district and county attorneys includes the power not only to prosecute cases but also to decide which cases should not be prosecuted.” Therefore, allowing the attorney general to file criminal charges when local prosecutors have chosen not to would still be a usurpation of the district or county attorneys’ exercise of their prosecutorial power that cannot be tolerated under the separation-of-powers doctrine.  Read concurrence.

Dissent (Yeary, J.):

“[E]ven assuming—for the sake of argument only—that the Court’s opinion on original submission was correct to decide that the AG has no independent authority under our Texas Constitution to prosecute crimes, the Court’s opinion was in error, on that account, to dispose of the case by ordering the dismissal of Stephens’s indictment. In other words, the Court itself erred by ordering an improper remedy.” Read dissent.

Dissent (Slaughter, J.):

Calling “the AG’s claim of 70 years of legislatively-granted authority for criminal prosecution of election law violations” misleading, the dissent then provided a detailed historical analysis of the constitutional and statutory development of prosecution in Texas to explain why local county and district attorneys—and not the attorney general—are tasked with that duty. The dissent also called out the Attorney General and others who filed amicus briefs and improperly “spurred hundreds, if not thousands, of individuals from across this state and other states to engage in attempts at impermissible ex parte communications with the Court.”

The dissent asserted, however, that it would grant rehearing to determine whether Election Code §273.021 may survive scrutiny under the separation-of-powers doctrine based upon a theory (not raised or briefed by any party) that distinguished between constitutional “duties” and constitutional “powers.” Read dissent.


By refusing to grant rehearing, the CCA stands firm in its previous decisions that: (1) an official of one branch of government may exercise functions of another branch of government only when the Texas Constitution expressly authorizes it, and (2) local county and district attorneys have exclusive authority to prosecute election-law violations that occur in their jurisdictions. Accordingly, the CCA’s original opinion remains a must-read if you encounter a separation-of-powers issue in the context of a criminal case.

Williams v. State

No. PD-0504-20                       9/28/22


Does temporary physical exclusion from a courtroom of a defendant’s family member for one witness’s testimony violate the Sixth Amendment right to a public trial?


Not under these facts. The excluded family member was allowed to watch the witness’s testimony through a live video feed from a neighboring courtroom. “But, we caution that courts should rarely exclude any member of the public from a courtroom during criminal case proceedings. And before doing so, the court must consider the factors under Waller v. Georgia, 467 U.S. 39 (1984), to ensure that any such exclusion is justified.” Read opinion.

Concurrence (Newell, J., Keller, P.J. and Hervey, J. joining):

The concurrence contended that while the trial court’s handling of the situation was “very reasonable,” the majority should have required the judge to ask the State to provide more justification for excluding the family member than asserting that his presence in the courtroom would intimidate the witness. “The Court cites to no authority for the proposition that physically excluding a family member from the courtroom during live testimony is trivial simply because that member is ‘virtually included’ via livestream.” Read concurrence.

Dissent (Walker, J.):

The dissent argued that there was insufficient evidence that the excluded family member would intimidate the witness, who was a confidential informant, and excluding him from the proceedings was structural error. Read dissent.


As a general rule, a trial judge should always keep his or her courtroom open to all members of the public at all times during trial. If, however, a closure of some form occurs (whether intentionally or unintentionally), the first step of the analysis concerning the effect of the closure is to assess the nature of the closure: was it full/complete, partial, or trivial/de minimis? If the closure was full or complete, proceed to the second step and analyze whether, per the four Waller factors, the closure was justifiable. If the closure was partial, proceed to the second step of a “Waller-lite” analysis, which uses the same four factors, but with a modified, less stringent first factor (requiring only a “substantial” reason for the closure, rather than an “overriding” one). If, as in this case, the closure was only trivial or de minimis, the Sixth Amendment public-trial right is not implicated, no constitutional error has occurred, and your analysis ends. 

Ex parte Woods

No. WR-93,208-01      9/28/22


If a convicted felon possesses two firearms, has he committed two offenses of unlawful possession of a firearm by felon?


No. The State charged the defendant through two indictments, and each indictment alleged possession of a different firearm. The indictments alleged the same date for the offenses and the same underlying conviction that made the defendant a felon. The Court concluded that possession of firearm by felon is a circumstances-surrounding-the-conduct offense (rather than result of conduct or nature of conduct), and therefore only one conviction may result from each instance of possession, regardless of the number of firearms the defendant possessed at that time. Read opinion.

Dissent (Yeary, J.):

The dissent argued that the court should not have granted relief in a post-conviction application for writ of habeas corpus on a claim that an applicant’s convictions for two offenses violated the double jeopardy clause without acknowledging the threshold issue of cognizability. Read dissent.


When otherwise innocent conduct is illegal only because of the status of the offender (e.g., status as a convicted felon, a sex offender required to register as such, a person subject to a protective order, etc.), the proscribed crime is a “circumstances” offense. This is important to know when you are making charging decisions because “circumstances” offenses will generally give rise to only a single crime per occasion, not separate crimes for each violation linked to the offender’s status on that occasion.

On a separate note, likely of interest only to appellate and writs practitioners, a footnote in the CCA’s majority opinion appears to settle the issue as to whether a double-jeopardy claim is cognizable in a post-conviction habeas corpus proceeding. The answer: It is, at least when, as here, “the undisputed facts show that the double-jeopardy violation is clearly apparent on the face of the record and when enforcement of the usual rules of procedural default serves no legitimate state interest.” By contrast, recall that it is well settled that a double-jeopardy claim is cognizable in a pretrial habeas corpus proceeding. See Stephens v. State, 806 S.W.2d 812, 814 (Tex. Crim. App. 1990) (“[T]he pretrial writ of habeas corpus is an appropriate remedy to review a double jeopardy claim.”).

Texas Courts of Appeals

Finley v. State

No. 02-21-00112-CR               9/22/22


Did the trial court err in allowing the victim to testify while wearing a surgical mask, when the policy in the county was that wearing masks in the courtroom was voluntary because of COVID-19?


Yes. The judge failed to make case-specific findings as to why the victim should be allowed to testify while wearing a mask. Even in the COVID-19 context, individualized, evidence-based findings are required to overcome the defendant’s Sixth Amendment right to confront witnesses against him. “Neither a generalized pronouncement by the trial court that courts were to protect against COVID-19 exposure nor the existence of a governing, county-level COVID-19 operating plan met this case-specific burden.” Read opinion.


The Sixth Amendment’s Confrontation Clause encompasses a strong preference for physically present, face-to-face confrontation at trial, which can be encroached upon only when it is necessary to further an important public interest, and when the reliability of the witness’s testimony is otherwise assured. Under the SCOTUS decision in Maryland v. Craig, 497 U.S. 836 (1990), and its progeny, including the recent CCA opinion in Haggard v. State, 612 S.W.3d 318 (Tex. Crim. App. 2020), a trial court is required to make a case-specific “finding of necessity” if the court opts to dispense with physically present, face-to-face confrontation for a particular witness. Texas courts have required a particularized necessity finding in various Confrontation-Clause contexts, including, like in Haggard, where a witness testified via two-way video (e.g., FaceTime or Zoom). However, as this opinion notes, this is the first Texas case to address whether a trial court is required to make a case-specific necessity finding to permit a witness to wear a surgical-style face mask (covering only the witness’s nose and mouth) while testifying, or whether the ubiquitous nature of the COVID-19 pandemic dispenses with that requirement. Although there is not a split among Texas appellate courts regarding this issue, this opinion departs from how some federal cases have treated the matter. You should not only expect the State to seek discretionary review by the CCA in this case, but also that the CCA might be interested in weighing in.