Texas Court of Criminal Appeals
State v. Gabaldon
No. PD-0149-23 9/3/25
Issue:
Following a motion to dismiss based on lack of speedy trial from a defendant charged with murder, was the State’s re-indictment and elevation of the charge to capital murder seeking death unconstitutionally vindictive?
Holding:
No. The Court found the trial judge’s dismissal with prejudice unjustified, but it limited the State to re-indict the defendant only on the original charge of murder or other lesser-included offense. While the Court concluded that the State, “at least in part,” had retaliated against the defendant by elevating the charge to capital murder for exercising his legal right to a speedy trial, weighing the factors for speedy trial violations in Barker, the defendant’s right to speedy trial was not actually violated. The Court also found that the current District Attorney’s Office need not be disqualified or recused from handling the murder case. “We reiterate that no party has requested the recusal of the District Attorney and is not precluded from doing so on remand. Secondly and from a more pragmatic perspective, just like we cannot take a case away from a prosecuting authority, we also lack the authority to force a neighboring prosecuting authority to take the case. … Especially in this case, the nearest neighboring prosecuting authority … is a considerable distance away. This presents additional logistical challenges compared to other areas in Texas where the geographical distance between neighboring county seats is far shorter. … It is dangerous to set a precedent that cannot be applied evenly throughout the state.” Read opinion.
Concurrence (Schenck, P.J.):
“I believe we should make clear that disqualification of the District Attorney is available as a remedy for a constitutional violation by that office. While we have not identified this option previously, I believe it is vital we do so now in view of developments in our jurisprudence over the last several decades precluding other, structural forms of constitutional oversight to check abuse of the prosecutorial function. To the extent the majority opinion may be read to foreclose this option to the trial judge on remand, I disagree.” Read concurrence.
Dissent (Finley, J., joined by Keel, J.):
“This is not a speedy trial case. This is a prosecutorial vindictiveness case. … The State’s Petition for Discretionary Review does not challenge the finding of prosecutorial vindictiveness and instead is limited to the question of remedy. I would affirm. Because the Court does not, I respectfully dissent.” Read dissent.
Commentary:
To be clear, the CCA found that the State’s actions in this case amounted to prosecutorial vindictiveness and sustained the trial court’s dismissal-with-prejudice as it pertained to the capital murder charge. What saved the State’s position in this instance overall, though, is that the CCA concluded that the extreme remedy of dismissal with prejudice was not necessary to “neutralize the taint” of the State’s misconduct (retaliating against the defendant for asserting his right to a speedy trial) as to the original murder charge, or any lesser-included offense of murder, because the CCA found that the State did not actually violate the defendant’s speedy-trial right. This is a good outcome for the State because it will be permitted to re-indict the defendant for murder or a lesser-included offense and, thus, pursue justice. However, these are perilous waters for prosecutors, and this case underscores the importance of developing a clear, thorough record of both your charging decisions (especially when you need to elevate a charge because further investigation and/or newly discovered evidence warrants the upgrade) and any reasons for pretrial delays.
Cockrell v. State
No. PD-0760-24 8/20/25
Issue:
Can Health & Safety Code §822.042(a) (Requirements for Owner of Dangerous Dog) serve as the source as a statutory duty to act for purposes of satisfying the elements of injury to a child by omission?
Holding:
Yes. The duty of an owner of dangerous dogs to restrain or securely enclose them can be imported to the Penal Code to serve as a statutory duty for purposes of injury to a child by omission under §22.04(b)(1). “[T]he relevant provisions of Texas’ dangerous dog law impose a statutory duty to act, and 22.04(b)(1) does not plainly limit what statutory duties from outside the Penal Code can form the basis for liability under the statute. Accordingly, we conclude that the provisions of 822.042(a) can serve as the statutory duty to act for purposes of Section 22.04(b).” Read opinion.
Concurrence (McClure, J.):
“I write separately to underscore a broader concern—one that Justice Gorsuch has addressed—regarding the need for legislative clarity to ensure the criminal liability does not arise unexpectedly or unfairly. … Although the Rule of Lenity, which directs courts to construe ambiguous criminal statutes in favor of the accused, is not directly at issue here, the sentiment underpinning the rule remains instructive. Criminal laws should be written with precision, so both the courts and the public clearly understand what conduct is criminalized. … I hope this case serves not only as an affirmation that plain and unambiguous statutory language will be honored by this Court, but also as a prompt to the Legislature to state clearly and specifically the conduct it intends to punish.” Read concurrence.
Dissent (Finley, J., joined by Newell and Walker, J.J.):
“I would interpret ‘legal or statutory duty to act’ in Section 22.04(b)(1) as a duty that is specific to the victim, rather than a duty to the general public. Because the Court does not, I respectfully dissent.” Read dissent.
Commentary:
This statutory construction case boils down to the fact that Health & Safety Code §822.042(a) explicitly utilizes the word “shall,” which, per the Texas Code Construction Act, imposes a duty. “Shall” is an oft-used term and appears in numerous statutes and rules. So, while the facts of this case may not be all that common, this decision may still be useful by analogy if you encounter a scenario wherein your case or argument hinges upon a defendant (or another person, even a judge) having a particular duty to act under certain circumstances.
Kitchens v. State
No. PD-0541-24 9/3/25
Issue:
Did the prosecutor’s closing argument, suggesting that the defendant was “prejudiced” and found the victim to be “scary” because the victim was Hispanic result in an improper comment on matters outside the record?
Holding:
Yes. “[N]o evidence at trial suggested that the defendant had a prejudice against Hispanics or was motivated to shoot the victim because he was Hispanic. Moreover, even if defense counsel might have implicitly suggested that the victim was dangerous because he was Hispanic, the prosecutor went too far when he suggested that the defendant had a prejudice against Hispanics.” The Court reversed the court of appeals’s judgment and remanded the case for a harm analysis. Read opinion.
Dissent (Schenck, P.J.):
“While I concur in the majority’s opinion that race-based statements which may violate a defendant’s Due Process rights are inappropriate at trial, I dissent from the assertion that the trial judge in this case acted beyond the bounds of discretion necessarily afforded to her to make the determination whether the race of the victim is at issue or has been put in issue by the defense, deliberately or otherwise.” Read dissent.
Commentary:
During closing arguments, prosecutors are certainly permitted to discuss the evidence presented at trial and may make assertions based on reasonable and fair inferences from that evidence. However, inferential arguments can be dangerous because, while a prosecutor may subjectively believe that an inference is supported by what he remembers the evidence to be, a reviewing court examining the entire record with the benefit of hindsight may disagree. Additionally, prosecutors should be especially careful when making any assertions that are based on anyone’s race (e.g., the defendant, the victim, an officer, a witness, etc.). Unless you are absolutely certain that your racially premised inference or argument is supported by the record, just steer clear of it.
Fraser v. State
No. PD-0964-24 9/3/25
Issue:
Did the probable cause affidavits accompanying a warrant to seize and search electronic devices assert a sufficient nexus between the felony murder offense and the devices?
Holding:
No. The Court found the evidence sufficient to convict the defendant for causing a 4-month-old’s death by giving the infant Benadryl, but remanded the case for the lower court to evaluate the harm caused by admitting digital evidence when the State had not sufficiently established a nexus. Citing State v. Baldwin, 664 S.W.3d 122 (Tex. Crim. App. 2022), the Court concluded the language in the affidavits was only “boilerplate,” with the nexus “solely based on the affiant’s personal beliefs. In other words, nothing in the warrant in this case sufficiently ‘state[s] the facts and circumstances that provide … probable cause to believe that … searching the telephone … is likely to produce evidence in the investigation of certain criminal activity.” Read opinion.
Concurrence (Finley, J.):
“I join the Court’s sufficiency of the evidence analysis. I agree that under our current jurisprudence, the evidence is sufficient to support Appellant’s conviction for felony murder. But I’m skeptical. Our current felony murder jurisprudence appears unsupported by the plain text of the statute.” Read concurrence.
Concurrence and Dissent (Yeary, J., joined by Schenck, P.J. and Parker, J.):
The author agreed with the majority’s conclusion on the defendant’s sufficiency of the evidence claim but disagreed with the Court’s conclusion that the warrant affidavit was insufficient. “In Baldwin, this Court erected a rigid test for affidavits seeking warrants to search cell phones. But the Court’s test is of the same hyper-technical sort explicitly rejected by the United States Supreme Court in Gates. We should reject such a rigid formula here and now and disavow our opinion in Baldwin on that ground. What is more, we should also disavow Baldwin because the affidavit in that case demonstrated a substantial basis for the issuing magistrate to find the existence of probable cause to search Baldwin’s cell phone.” Read concurrence and dissent.
Concurrence and Dissent (Parker, J.):
“I disagree with the Court’s resolution of the Fourth-Amendment issue. Although a nexus between a cell phone and the offense are needed to establish probable cause to search the phone, I would find a sufficient nexus when the police had probable cause to believe that an infant died of medicine poisoning while under professional care in a home-based caregiver business.” Read concurrence and dissent.
Commentary:
The majority opinion of the CCA here reaffirms that Baldwin remains alive and well. Under that precedent, to establish a sufficient nexus between the offense and the electronic device to be searched, a search warrant affidavit must do more than simply state the affiant’s belief that electronic devices often or “commonly” contain evidence of crimes. One way to establish the requisite nexus is to show that the accused possessed and used the electronic device(s) to be searched before, during, or after the offense. A way to demonstrate that possession and use is to obtain a cell site location information warrant from a cellphone service provider, or a “geofence” warrant for GPS, WiFi, or Bluetooth-sourced location history information related to the device, which can (and should) be closely confined to the date, time, and area of the offense to avoid being overly broad. Wells v. State, 714 S.W.3d 614 (Tex. Crim. App. 2025), offers a good example of the CCA upholding a geofence search warrant affidavit. Though a stair-step approach like this may seem tedious, it should benefit your case in the long run because, in addition to helping furnish the nexus between the electronic device and the crime that’s required for a warrant to actually search the device, the location information itself is often compelling circumstantial evidence of opportunity to commit the crime.
Texas Courts of Appeals
Jones v. State
No. 13-24-00651-CR 8/28/25
Issue:
Is the State required to prove with scientific certainty that a substance in a suspect’s possession was marijuana rather than legal hemp?
Holding:
No. The legalization of hemp did not alter the State’s burden of proof in marijuana cases. “Instead, we hold that an officer’s opinion on the identity of the substance, combined with other incriminating evidence, can be legally sufficient to support a jury’s finding that a defendant possessed marijuana. … Even with the legalization of hemp, an officer, through training and experience, is competent to identify a substance as Cannabis sativa L.” Read opinion.
Commentary:
As the appellate court states, before the legalization of hemp in 2019, it was long-established practice that a police officer’s testimony, based on his training and experience, that a substance was marijuana was legally sufficient alone to establish that fact. However, since illegal marijuana and now-legal hemp (which is the same plant but simply has a lower amount of THC) are apparently indistinguishable through ordinary human powers of sight and smell, the scientific certainty of a police officer’s identification of a substance as illegal marijuana based on those considerations has been undercut. The court of appeals was not especially troubled by that and also found that the State bridged any evidentiary gap with other circumstantial evidence that tended to show that the green, leafy substance was marijuana, not just hemp, such as the defendant’s incriminating conduct and statements. If the defendant petitions the CCA for discretionary review, the CCA may be interested in weighing in on the scientific-certainty aspect of this case. Regardless, though, it would be prudent for prosecutors to not rely solely on an officer’s conclusion that a substance is illegal marijuana based on the officer’s training and experience as to the sight and smell of marijuana. Instead, like in this case, be sure to present additional direct or circumstantial evidence that a substance is illicit marijuana, not just hemp, to guard against legal-sufficiency challenges.
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