Weekly Case Summaries: December 14, 2018

Texas Court of Criminal Appeals

Ritcherson v. State

No. PD-0021-17                       12/12/18


Is a defendant entitled to a lesser-included offense instruction when no evidence is presented supporting the lesser culpable mental state?


No. A defendant is entitled to a lesser-included offense instruction when there is evidence from which a rational jury could find the defendant guilty of only the lesser offense. This requires evidence that negates the greater offense and raises the lesser-included offense or is open to that interpretation. Here, the defendant was charged with murder and requested lesser-included offense instructions on manslaughter and negligent homicide. The defendant was not entitled to these instructions because there was no evidence that would allow a rational jury to find that she had acted only recklessly. Read opinion.


This is a very good decision and should be very helpful for prosecutors. But as with all jury charge decisions, especially those involving charges on lesser-included offenses, prosecutors should carefully make sure that the facts of their case are the same as the facts of the case upon which they are relying. In this case, a witness testified that the defendant acted only as a reflex, and the court held that—if true—this was not a reckless action. If the defendant acted only reflexively, her actions were not voluntary, and she should have been acquitted, not convicted of a lesser offense. The best part of this decision is that it repeats what the court has previously held before—that, in determining whether a defendant is entitled to a charge on a lesser-included offense, one should not “pluck” a piece of evidence out of the context of the rest of the evidence presented at trial. The evidence should be viewed together to determine if the jury could have rationally come to the conclusion that, if the defendant was guilty, she was guilty only of the lesser offense. This decision is long and very fact-bound, but everyone should read it.

State v. Garcia

No. PD-0344-17                       12/12/18


Is a warrantless blood draw permitted under “exigent circumstances” when the defendant declined intravenous treatment and further medical care is not immediately imminent?


No. While an officer may initiate a warrantless blood draw when he reasonably believes that evidence-destroying medical treatment is about to take place, merely being in a medical setting where some treatment may take place is insufficient to support a warrantless blood draw. Here, the trial court’s findings stated that the officers could hear the defendant decline an IV and all treatment had stopped at that time. Given these facts the officers could not reasonably believe that evidence-destroying treatment was about to take place. Read opinion.

Dissent (Yeary, J.):

“[T]he facts of the instant case present particular (and particularly compelling) circumstances that coalesce to justify a categorical exemption from the general warrant requirement based on practical exigencies. … I would hold that it is reasonable—for Fourth Amendment purposes—for police officers, without a warrant, to take any available opportunity to extract a sample of blood for evidentiary uses, so long as this can be accomplished without compromising medical evaluation or treatment. … I would not engage in the tedious, hair-splitting enterprise of trying to ascertain whether the police might have been aware that all medical evaluation and treatment had come to a complete stop, such that the possibility of blood-evidence contamination is no longer an “objectively reasonable concern” in the particular case.” Read opinion.


This is a State’s appeal; therefore, many of the trial judge’s factual findings—in opposition to the State’s argument—were given deference on appeal. It is possible that this decision might have gone differently if the trial judge had ruled against the defendant and this was an appeal by the defendant, but I would not count on it. The majority actually disregarded many of the factual findings made by the trial judge. This very thorough decision underscores just how difficult it is for the State to successfully make an exigent-circumstances argument in a warrantless blood draw case after Missouri v. McNeely. For anyone who really wants to make an exigent-circumstances argument in a warrantless blood draw case, this very thorough decision gives some guidelines to keep in mind.

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