Case of the Week Archive

Davy v. State

The State is not required under the Michael Morton Act (CCP Art. 39.14) to turn over a defendant’s pen packet without the defendant’s specific discovery request for it. Read opinion.

May 12, 2017

Texas Courts of Appeals

Davy v. State

Nos. 07-16-00262-CR and -00263-CR    5/5/17


Is the State required under the Michael Morton Act (CCP Art. 39.14) to turn over a defendant’s pen packet without the defendant’s specific discovery request for it?


No. The disclosure requirements in Art. 39.14(a) are triggered only after a timely request from the defendant. The Court concluded that in its 2013 amendments creating the Michael Morton Act, “the Legislature retained in article 39.14(a) the concept that discovery applies to items ‘designated.’” Read opinion.


This is an interesting opinion. The defendant neglected to make his discovery request part of the appellate record. The court holds that the absence of a request asking for the particular document he complains about on appeal was fatal to his claim that the State did not provide discovery of his prior convictions. If specificity is the key, get ready for discovery motions copying the list of items in Art. 39.14 or using incredibly broad language that encompasses every non-privileged item in the State’s file. Of course, if defense counsel doesn’t ask for everything, the defendant will probably file an ineffective assistance writ if he figures out the State used an item not provided in discovery. “He didn’t ask for it” may not be a very good reason to forego providing a copy.

State v. Haworth

No. 13-15-00519-CR     5/4/17


To be disqualified for basing a ruling on personal knowledge of contested facts, must a trial judge actually observe the act in question?


No. A judge is also disqualified from hearing a matter in which he has obtained personal knowledge about contested facts. In this case, after viewing a dash-cam video of a DWI stop, the judge went to the street and “inspect[ed] the location” where the defendant made a U-turn at a red light. The judge then granted the defendant’s motion to suppress based on his personal conclusion that the officer could not have seen the red light from his vantage point. “We hold that the trial judge was disqualified from acting on the ground that he sua sponte obtained personal knowledge about contested facts and used that personal knowledge in a ruling on a motion to suppress.” Read opinion.


Just when you thought all reversible errors had been discovered, someone flips over a rock and finds a new one—the trial judge cannot perform a scene visit when hearing a motion to suppress. We are all a little bit smarter today.

Chambers v. State

No. 13-16-00079-CR     5/4/17


Are firearms qualifications forms kept by a police department considered “governmental records” under Penal Code §37.10 (Tampering with Governmental Record)?


Yes. The State is not required to prove that a document is “required by law to be kept.” It must prove only that the records belonged to, were received by, or were kept by the governmental agency (in this case, a city police department) “for information.” Read opinion.


This could be a very useful opinion. Government agencies keep many different records, not all of them particularly required by a statute or rule, but nevertheless important to governmental operation. Tampering with those records can hamper or harm the government or individuals just as much as records specifically decreed by statute. This opinion helps ensure the offense of tampering with a governmental record remains an effective tool for fighting corruption and malfeasance.

Ex parte Moy

No. 14-16-00420-CR     5/9/17


Is Penal Code §33.021(c) an unconstitutional content-based regulation?


No. The 14th Court of Appeals joins the 1st Court of Appeals in finding that §33.021(c) regulates conduct and speech that is not protected under the 1st Amendment. See Ex parte Wheeler, 478 S.W.3d 89 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d). The Court also rejected the defendant’s challenges to the statute based on overbreadth, vagueness, and violation of the Dormant Commerce Clause. Read opinion.


With the two Houston courts of appeals expanding on language from the CCA’s decision in Ex parte Lo, it is likely that this issue is settled in Texas.

Texas Attorney General Opinions

No. KP-0146     5/8/17


Does a county commissioners court that establishes a veterans’ treatment court program under Government Code Chapter 124 have the authority to direct and control administrative details such as hiring and supervising grant-funded personnel?


No. Chapter 124 authorizes the veterans’ treatment court judge—not the commissioners court—to select and supervise staff of the court program. Read opinion.


That angry shout you just heard was the commissioners of various counties learning of yet another position that will be politically difficult for them not to create but for which they cannot dictate who is hired.

TDCAA Cybercrime Seminar

Registration is now open for TDCAA’s Cybercrime Seminar. The course will run from June 7 to the 9 in lovely San Antonio. Topics will cover the collection and use of electronically stored evidence as well as those offenses commonly committed with the assistance of computers. Don’t forget to book your hotel room now: The TDCAA rate expires 5/16/17! For more information, see the TDCAA website at:

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

Ex parte Pete

When error that cannot be remedied or misconduct happens in the punishment phase of a jury trial, a trial judge has authority in some cases to grant a mistrial as to the punishment phase only. Read opinion.

In re Powell v. Hocker

Under Code of Criminal Procedure Art. 39.14(f), a defendant (even a pro se defendant) does not have a right to personally retain a duplicate or copy of any discovery material other than his own witness statement. Read opinion.

Moore v. Texas

The U.S. Supreme Court held, 5-3, that the seven evidentiary factors set out in Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004), for evaluating potential intellectual disability in a capital murder defendant do not comply with the Eighth Amendment because they do not adequately consider the current medical community’s diagnostic standards. Read opinion.

Manuel v. Joliet

A plaintiff may bring a §1983 claim based on the Fourth Amendment to contest the legality of his pretrial confinement. Read opinion.

Cruz v. Abbott

The anti-harboring provisions of Penal Code §20.05(a)(2) (as passed in 2015 by HB 11) do not impermissibly target illegal alien shelters and expose the landlords who rent to them to criminal liability. Read opinion.

Pruett v. State

A deadly weapon finding can be appropriate in an arson case when the fire does not actually seriously harm or kill anyone. A deadly weapon finding does not depend on whether someone was hurt. Read opinion.

Porter v. State - 1st COA

The attorney-client privilege or the special rule for criminal cases found in Tex. R. Evid. 503(b)(2) does not protect from disclosure an attorney’s description of conduct he engaged in to remove and secrete material evidence from a crime scene. Read opinion.

Love v. State

There a reasonable expectation of privacy in the content of text messages sent and received on a defendant’s cell phone, even though that information is available to third parties (cell phone providers). Information about the sender and recipient is available, but the content of the text messages or emails is protected unless there is a proper warrant to search. Read

Cook v. State (2nd COA)

A defendant’s home may be a “suspicious place” under Code of Criminal Procedure Article 14.03 to justify a warrantless arrest. Any place may be “suspicious” when there is a reasonable belief that a person at that place has committed a crime and exigent circumstances call for immediate police action. In general, a place is suspicious only if there is a very short timeframe between the crime and the presence of the defendant in that place. Read.

Knight v. State (2nd COA)

Felony deadly is not always a lesser-included offense of aggravated assault. Felony deadly conduct requires the discharge of a weapon, while aggravated assault requires that the defendant “intentionally or knowingly threaten another, including his spouse, with bodily injury and use or exhibit a deadly weapon during the commission of the assault.” Felony deadly conduct might be a lesser-included offense, however that will depend upon how the offense is charged. Read.

Barnett v. Marquis

In a case from the Ninth Circuit of Appeals, a prosecutor is absolutely immune from suit for refusing to present a sheriff as a witness and refusing work with him in ongoing investigations because of credibility issues. Read.

State v. Schunior

The Court found the statute of limitations for aggravated assault is governed by Art. 12.03(d), making the limitations period the same as the “primary crime.” In this case, there is no evidence that the “primary” assault was a felony assault; thus, the primary crime was a misdemeanor assault, and the statute of limitations is two years. Read.

US v. Turner (Fifth Circuit)

Scanning the magnetic stripe on the back of a gift card is not a search under the Fourth Amendment. The court reached two very important holdings: 1) the cards could be seized when they were seen in plain view because the officers had probable cause to believe that they were instrumentalities of a crime, and 2) the defendant did not have a reasonable expectation of privacy in the information on the magnetic stripe that would prevent the search of that magnetic stripe after the card had been properly seized. Read.

Metts v. State

Appearing at a status hearing—however briefly—and signing a jury waiver form is enough make a prosecutor “counsel for the State”—so that the prosecutor should be disqualified from ever presiding over the case as a judge. Read

State v. Copeland

Even if a trial court’s finding of fact and conclusions of law do not mention an argument made by one of the parties at trial, that argument is still available as a “theory of law” to uphold the ruling. The bottom line is that the State should argue and present evidence—both at trial and on appeal—on all legal theories that support the trial court’s denial of the defendant’s motion to suppress. Read.

US v. Toussaint (5th Circuit)

Once police were made aware of a credible threat on the life of a driver, there were exigent circumstances to initiate a vehicle stop. The fact that 45 minutes passed without incident before the stop did not mean the emergency was over. Read.

Morgan v. State

It is possible a defendant may be prosecuted for burglary of a habitation even when he lives in said habitation with the victim. The Penal Code definition clearly states that the owner of property is a person who has “a greater right to possession of the property than the actor.” Though the defendant was living with the victim, she maintained a greater right to possession of the property because it was in her name, she paid the rent, and she invited the defendant to live there. Read.

State v. Hill

A trial court does have discretion to hold a pretrial evidentiary hearing on a defendant’s motion to quash and dismiss. Code of Criminal Procedure Art. 28.01 specifically gives trial courts broad discretion to hold pretrial hearings on preliminary matters including, “pleadings of the defendant,” exceptions to the form or substance of the indictment, or “discovery.” Read.

Byrd v. State

If a defendant commits a second offense while on parole for a first offense, the timing of the parole revocation is key. If parole has already been revoked at the time of sentencing, as in Ex parte Wrigley, the trial court may stack the second sentence on top of the original sentence. However, if, as in this case, parole for the first offense has not yet been revoked, a cumulation order from the trial court is invalid because a defendant in that scenario has “made parole” and his sentence has “ceased to operate” under Code of Criminal Procedure Art. 42.08. Read.

Tafel v. State (10th COA)

Penal Code §46.035(i) is a defense to prosecution, meaning that the defendant must raise it, rather than an exception which should be plead and negated by the State. Read.

Prince v. State

The State’s failure to disclose a “ride-along witness” did not constitute a discovery or Brady violation and did not prevent the defense from exposing the officer’s bias and motive. During trial, the officer testified that he was “working alone” during a routine traffic stop. The defendant knew there was another individual present, although the prosecutor apparently learned about the “ride-along witness” only after the defendant testified to the ride-along’s presence at the scene. The Court agreed with the State that there was no Michael Morton Act violation because the defendant knew about the existence of the ride-along witness and because the defense had the opportunity to cross-examine the officer regarding this witness but chose not to.

Birchfield v. North Dakota

A defendant, lawfully arrested for driving while intoxicated, cannot be convicted of a crime for refusing to consent to a warrantless blood draw to test his BAC, but he can be convited of a crime for refusing a breath test. Because a breath test does not implicate significant privacy concerns, an officer may perform such a test without a warrant, but because a blood test imposes more significant privacy concerns (especially with a less-intrusive breath test alternative), blood may not be drawn without a warrant via a search incident to arrest. Read.

Utah v. Strieff

The attenuation doctrine does apply when an officer makes an unconstitutional investigatory stop, learns during that stop that the suspect is subject to a valid arrest warrant, and then arrests the subject and seizes incriminating evidence during a search incident to that arrest. The Court rules the presence of a valid arrest warrant is an “extraordinary intervening circumstance” that breaks the causal chain between the unconstitutional stop and the evidence found. Read.

Texas v. 2004 Lincoln Navigator

The Code of Criminal Procedure does not preclude the State from initiating a civil-forfeiture proceeding based on an illegal search. The exclusionary rule in CCP Article 38.23 does not apply to asset forfeiture proceedings under Chapter 59. The state is not required to prove lawful seizure as a prerequisite to a forfeiture proceeding; it is only required to show that the evidence is contraband subject to forfeiture. Read.

Dabney v. State

Rule of Evidence 404(b) does not require notice for extraneous offense evidence used as rebuttal evidence. The State is not required to anticipate a defensive theory prior to trial and give 404(b) notice of the rebuttal evidence. Also the State is allowed to present rebuttal evidence in its case-in-chief. Read.

State v. Frias (8th COA)

A trial court should not grant a motion for new trial on the basis of claims of ineffective assistance of counsel not raised in the original motion for new trial. In this case, the defendant filed a motion for new trial alleging certain instances of ineffective assistance of counsel, but at the new trial hearing, which occurred outside the 30-day window for amending the motion, the defendant presented new arguments on that same claim. While the defendant did not allege a “wholly distinct legal ground,” the additional arguments were not pled in the original motion for new trial and thus could not support the grant of new trial. Read.

Cole v. State & Weems v. State

Were there exigent circumstances to allow a warrantless blood draw?

Yes in Cole and no in Weems. Cole and Weems should be studied together so that prosecutors and police can understand what exigent circumstances are and are not. The proper way to view an exigency case is “whether officers had a reasonable belief that obtaining a warrant was impractical based on the circumstances and information known at the time of the search.”

Read Cole here & Weems here.

Pena v. State (8th COA)

The State cannot revoke a defendant’s probation based on the invocation of his Fifth Amendment right in mandated sex offender treatment. Because the State did not grant the defendant full-use immunity for any statements that could be used against him in potential future cases, the defendant cannot be compelled to make self-incriminating statements in a mandatory treatment program and the State cannot use his dismissal from that program as the basis for revoking his probation. Read.

Ex parte Poe (9th COA)

Penal Code §42.01(a)(8), prohibiting disorderly conduct by displaying a firearm, is not unconstitutionally vague or overbroad. The court found that that statute punishes conduct, not speech, and is rationally related to the State’s interests in protecting citizens from harm. Read.

Letter from the Hudspeth County Attorney

While the county sheriff has authority to maintain certain funds outside of the county treasury, these funds are still subject to oversight and audit by the county auditor. In large counties it is possible for the county auditor to require his or her countersignature in addition to that of the sheriff when withdrawing funds from the sheriff’s accounts, but in counties with a population less than 190,000, unless otherwise provided for by statute, there is no authority to require an auditor’s signature on sheriff’s funds held outside the county treasury. Read.

State v. Ambrose

When deciding if there was egregious harm suffered in a case, an appeals court is not required to defer to findings of fact made by the trial court. To the extent a question of fact may depend on credibility or demeanor, it may be appropriate to defer to the trial court’s findings; however, on questions of fact or law that do not rely on an evaluation of credibility or demeanor, an appeals court is not required to defer to the trial court findings. Read.

Mayer v. State (14th COA)

Transportation Code §550.021(a), as amended in 2013, does not require a defendant to know that he or she hit a person before the State can show failure to stop and render aid. The Legislature specifically added §550.021(a)(3), which states: “The person shall … (3) immediately determine whether a person is involved in an accident, and, if a person is involved in the accident; remain at the scene . . .” to close the loophole used by drunk drivers that they were unaware that they hit another person when they left the scene. Read.


State v. Huse

HIPAA does not affect the Hardy rule that a defendant does not have an expectation of privacy in the BAC results of blood taken and tested by a hospital. Additionally, it is not a violation of CCP Art. 38.23 for a prosecutor to obtain medical records through a grand jury subpoena, even when that subpoena was not signed by the grand jury foreman, and the information not directed to be returned to the grand jury. Read.

Elizondo v. State

Before a jury charge on provocation is allowed, a court must determine if there is enough evidence that a jury could find three factors: 1) that the defendant did some act or used some words that provoked the attack on him; 2) that such act or words were reasonably calculated to provoke the attack; and 3) that the act was done or the words were used for the purpose and with the intent that the defendant would have a pretext for inflicting harm upon the other. The three provocation factors must all be present before a court can address the issue of whether the defendant abandoned or attempted to abandon the encounter. Read.

Estes v. State (2nd COA)

Penal Code §22.011(f) violates the Equal Protection Clause when it results in a harsher punishment for a defendant based only on the fact that he was married. Section 22.011(f) raises the level of sexual assault from a second-degree felony to a first-degree felony when “the victim was a person whom the actor was prohibited from marrying or purporting to marry.” There is no rational basis for the Legislature to treat married and unmarried defendants differently in this regard. Read.

In re State of Texas (7th COA)

Under Code of Criminal Procedure arts. 42.111 and 45.051, a county court-at-law judge does not have authority to grant deferred adjudication to a CDL driver for a traffic offense that has been appealed from a lower court. Read.

Bell v. State (11th COA)

Exigent circumstances for a warrantless blood draw were not present in a case where officers made no effort to identify if a magistrate was available to sign a warrant. The additional factors of identifying a passenger in the vehicle and alerting CPS to the presence of a child in the vehicle were not enough to claim exigent circumstances given that multiple officers were available on-scene to assist. Read.

Skinner v. State

The Court of Criminal Appeals determined that a previous Agreed Joint Order for DNA Testing, filed by the defendant and the State in the trial court, serves as a Chapter 64 motion, giving the Court jurisdiction to address the defendant’s DNA recalculation request. Read.

This is the first case involving the problems that arose last summer regarding mixture DNA and the Combined Probability of Inclusion (CPI) statistics used by DPS and other labs to report results.  You can read the background on this here.

Cameron v. State

A defendant must meet an initial burden of showing his or her trial was closed before the court of appeals can consider whether the closure was justified or if it was a Sixth Amendment violation. Read.

Kent v. State

When multiple thefts are aggregated under Penal Code §31.09, must each theft is not required to be proven beyond a reasonable doubt because the conduct is considered to be one singular offense. Additionally, the jury must only be unanimous in its agreement that a threshold amount has been reached and that all elements have been proven for each specific instance of theft the individual believes was a part of the scheme or course of conduct—it is not required that each member of the jury rely on the same specific instances of theft. Read.

Minton v. State (7th COA)

It was possible to show proper venue in Lubbock County even though the defendant had never been within 175 miles of Lubbock County. Venue is not an element of the crime and must be proved only by a preponderance of the evidence. While this defendant did not enter Lubbock County, he acted with a common purpose to provide his co-defendants with heroin that was transported to and intended to be sold in Lubbock County. Read.

Blea v. State

When considering evidence of serious bodily injury, injuries should be assessed as they were inflicted by the defendant, not as they existed in an improved condition after medical treatment. Read.

State v. Velasquez (4th COA)

A trial court must give notice to all parties before holding a hearing on a motion to suppress. Hearing the motion without notice at the trial setting does not meet the requirements of Code of Criminal Procedure Article 28.01. Read.

Ex parte Gomez-Reyes

A defendant is entitled to a certified translator for a memorandum attached to his application for habeas corpus. The Court of Criminal Appeals will hold the application in abeyance until the trial court obtains a certified, translated copy of the defendant’s attached memorandum. Read.

State v. Castorena (4th COA)

The State did not need to identify specific instances of conduct in the defendant’s indictment for misapplication of fiduciary property because the State included aggregation language in the indictment, specifically from §32.03 of the Penal Code. Thus Castorena was charged with only a single offense, and specific acts of theft were not necessary. Read.

Marshall v. State

It was not egregiously harmful to omit the words “bodily injury” from the jury charge in a trial for felony assault of a family member under Penal Code §22.01 because the charge alleged that the defendant “intentionally, knowingly, or recklessly imped[ed] the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck, or by blocking the person’s nose or mouth,” which is a bodily injury per se. Read.