September 6, 2019

Texas Courts of Appeals

State v. McGuire

No. 01-18-00146-CR    8/29/19


Must the State show exigent circumstances when arguing that a warrantless arrest was justified because the defendant was found in a suspicious place?


Yes. After the U.S. Supreme Court’s decision in Missouri v. McNeely, 569 U.S. 141 (2013), the dissipation of alcohol is not sufficient to show an exigency. The State argued that no exigency showing should be required, but the court instead found that a warrantless arrest under the suspicious place exception requires the State to show exigent circumstances. Read opinion.

Dissent (Keyes, J.):

The dissent contended that the majority incorrectly presumed that McNeely “extends beyond warrantless searches to draw blood into the distinct domain of warrantless arrests.” Read opinion.


Watch for this one to be reviewed by the Court of Criminal Appeals. The statute in question does not contain an exigency requirement, and the Fourth Amendment likewise does not impose an exigency requirement as regards warrantless arrests.

Molina v. State

No. 01-18-00317-CR     8/29/19


Does the Confrontation Clause bar a testifying expert from relying on computer-generated data gathered by employees of an out-of-state lab who processed physical evidence for DNA if no one from the out-of-state lab testifies?


No. Computer-generated DNA data from another lab is not testimonial, so the Confrontation Clause does not bar a testifying expert from relying on it even though the lab employees who accumulated the data do not take the stand. Read opinion.

Dissent (Countiss, J.):

The dissent argued that admission of the evidence violated the defendant’s Confrontation Clause rights, noting that the testifying expert admitted he was unfamiliar with the out-of-state lab’s “processes, procedures, protocols, personnel, and chain-of-custody precautions,” and noted that he could have re-tested the evidence himself. Read opinion.


This appears to be a straightforward application of Paredes and Illinois v. Williams. Recent changes to the composition of the Supreme Court do not seem, at this point, to have reignited that Court’s interest in the Confrontation Clause.

Gutierrez v. State

No. 14-18-00201-CR    8/20/19


Does the exigent circumstances exception justify seizing a defendant’s cell phone when a child victim of sexual assault says that the phone contains photos taken by the defendant of her sexual organs and officers fear the defendant will destroy or hide the photos or phone?


Yes. Exigency can be shown if a suspect has control over easily disposable evidence. At the police station, the defendant asked for access to his phone to retrieve important phone numbers, but an officer saw the defendant accessing the photo gallery. Officers later obtained a warrant to search the phone’s contents. The court concluded that seizure of the phone was proper under the exigent circumstances exception. Read opinion.

Concurrence (Spain, J.):

“Appellant’s trial counsel waived a Texas Rule of Evidence 403 objection to the thumbnails of photos on appellant’s cell phone that were described at trial as ‘disgusting.’ While appellate review of the admission of the individual ‘highly pixilated’ photographs is required, as a practical matter it can do appellant no good. The jury was informed of what was on the thumbnails. I cannot conclude that appellant’s conviction was unaffected by the admission of the thumbnails. Perhaps if a timely rule 403 objection had been made and the trial court granted the objection in whole or in part, things might have been different.” Read opinion.


This detective did a good thing when he seized the defendant’s phone prior to obtaining a warrant. It is well accepted that officers can intervene to maintain the status quo while obtaining a warrant.

Ex parte Edwards

No. 01-19-00100-CR    8/27/19


What level of “testing results” is required by Code of Criminal Procedure Art. 12.01(1)(C)(i) (which discusses forensic DNA testing of collected biological matter) to allow no statute of limitations for sexual assault rather than a 10-year statute of limitations?


For an unlimited statute of limitations in sexual assault cases, the pre-2019 version of Art. 12.01(1)(C) required: (1) collection of biological matter during the investigation of the offense; (2) the sample was subjected to forensic testing; and (3) the testing results show that the matter does not match the victim or any other person whose identity is readily ascertained. Evidence showing the assignment of a sexual assault case for further investigation “regarding a CODIS match confirmation” and a request to analyze the defendant’s buccal swabs for comparison to “the male DNA that was found in the complainant’s sexual assault kit” does not constitute evidence of forensic DNA testing results sufficient to show that the biological matter collected in the complainant’s sexual assault kit did or did not match a person whose identity is not readily ascertained. Therefore, the statute of limitations in this case was 10 years. Read opinion.

Robles v. State

No. 14-18-00401-CR    8/20/19


Is the 2015 version of the prostitution statute unconstitutional as a violation of substantive due process under the 14th Amendment, because it acts as “a deterrent to the commodification of sex”?


No. The State has at least two legitimate interests in criminalizing prostitution: 1) deterring crimes such as human trafficking and violence against women; and 2) acting as a deterrent to the spread of infectious diseases. Read opinion.

Najar v. State

No. 14-17-00785-CR     8/29/19


Has a jury impermissibly considered a matter not in evidence if all jurors have presumed the defendant—charged with fleeing under Penal Code §38.04—must have heard the officer’s siren because jurors heard a police siren from the jury room (on the 15th floor of the courthouse) while deliberating?


Yes. Under T.R.App.P. 21.3(f), the defendant is entitled to a new trial because the siren heard by the jury constituted “other evidence.” The court disagreed with the trial judge’s finding that the jurors could have drawn on their “general experience of hearing sirens.” Read opinion.

Dissent (Christopher, J.):

The dissent argued that the majority should have relied on T.R.Evid. 606(b) rather than Rule 21.3 to decide whether the defendant was entitled to a new trial, and that the sound of a siren shouldn’t be considered “other evidence” under Rule 21.3. Read opinion.


New info on mental health resources

In conjunction with the Judicial Commission on Mental Health, Judge Barbara Hervey and the Court of Criminal Appeals recently issued their first Texas Mental Health Resource Guide cataloguing various treatment resources available across the State of Texas. An online PDF version of the report is available on the TDCAA website.