September 5, 2014



Texas Courts of Appeals

Kent v. State

No. 14-13-00375-CR              8/28/14


In an aggregated theft case under Penal Code §31.03, must the jury be unanimous as to the owner and amount of each alleged incident of theft that makes up the aggregated amount, or only as to the total amount stolen from all victims?


In a case of first impression, the court held that each individually alleged instance of theft is an element of the crime upon which the jury must unanimously agree. When an aggregate theft offense is predicated on §31.03, the jury must unanimously agree about what property was unlawfully appropriated. Read the opinion.


This one should go up. The State is not required to plead each individual theft in an aggregated theft indictment. Kellar v. State, 108 S.W.3d 311, 313-14 (Tex. Crim. App. 2003). It follows that if it need not be pleaded, it need not proven unanimously. Here, the jury was required to unanimously find what was stolen (money), who it was stolen from (the victims), and the aggregate value. Unanimity regarding the underlying thefts guts the holding in Kellar and makes trying aggregate theft cases substantially more difficult.

Holcomb v. State (on rehearing)

No. 01-08-00337-CR              8/28/14


1)      When the judge directed a verdict against the State as to one of six named complainants in an aggregated theft case, was it double jeopardy to include that defendant’s name and the amount stolen from him in the jury instruction?

2)      Did the double jeopardy violation entitle the defendant to a complete acquittal or new trial on guilt/innocence?


1)      Yes. Once the judge acquitted the defendant of charges related to the facts surrounding that particular complainant, the jury charge subjected the defendant to post-acquittal factfinding proceedings in violation of double jeopardy protections.

2)      No. The defendant was entitled to have the theft charge reduced to a degree that corresponded with an amount of money equal to the aggregated total of the five remaining complainants—a lesser included the jury had already impliedly unanimously found for by convicting the defendant of the higher amount—and then receive a new punishment trial as to that conviction.

Read the opinion.


Two aggregated theft opinions in one update is pretty unusual. This decision is consistent with recent CCA and Supreme Court cases on incorrect acquittals.

Johnson v. State (on remand from the Court of Criminal Appeals)

No. 14-10-01089-CR              8/21/14


When an officer saw a person, who matched a description from a 911 call reporting a suspicious person at the same apartment complex, sitting in a car parked in a manner that was consistent with the way “getaway” vehicles are parked, did those facts provide enough reasonable suspicion for the officer to initiate an investigative detention?


Yes. Although the same facts under different circumstances could be totally innocuous, the officer had specific, articulable facts combined with rational inferences that, under the totality of the circumstances, amounted to reasonable suspicion. Read the opinion.


This seems like a straightforward application of Terry, Woods, and Derichsweiler.




Office of the Attorney General

Request from the El Paso County Attorney

RQ-1216-GA              8/29/14


  1. Is a contempt proceeding pursuant to §§62.0141 and 21.002 of the Texas Government Code civil or criminal in nature?
  2. When a non-responsive or defaulting juror has been found guilty of contempt pursuant to §62.0141 of the Texas Government Code, is he subject to civil court costs?
  3. Can civil court costs be assessed to a proceeding of contempt pursuant to §21.002 of the Texas Government Code?


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, it’s staff, or any member of the association. Please email comments, problems, or questions to [email protected]