Case of the Week Archive

Berry v. State (4th COA)

The defendant could not be found guilty of misapplication of fiduciary property on the theory that he was acting in a fiduciary capacity when he took payments from customers for window treatments and then failed to deliver those goods as promised. For the first time, the court created a definition for the statutorily undefined term “fiduciary capacity” and held that “one acts in a fiduciary capacity for purposes of the statute if his relationship with another is based not only on trust, confidence, good faith, and utmost fair dealing, but also on a justifiable expectation that he will place the interest of the other party before his own.” Although the defendant clearly acted contrary to an agreement with which his customers trusted him to comply, there was no evidence as to a justifiable expectation that he would place their interest before his own. Read the opinion.

Ex Parte Maxwell

The Supreme Court’s prohibition against mandatory life without parole for juvenile offenders announced in Miller v. Alabama applies retroactively. Because Miller completely removes a punishment from the list of punishments that can be imposed on a particular class, it is a new substantive rule and should be applied retroactively under Teague v. LaneRead the opinion.

Fernandez v. California

If a person objects to police making a warrantless search of his residence, and police physically remove him from the residence, the police can make a warrantless search with the consent of the remaining co-occupant. Under Georgia v. Randolph, a person’s objection to a search of a residence is not effective unless he is physically present. As soon as he is removed, his objection is also removed. Read the opinion.

State v. Granville

Polic cannot make a warrantless search of a cell-phone in a jail property room that is confiscated as part of a booking-inventory procedure and not incident to arrest. A person retains a legitimate expectation of privacy in the contents of his cell phone when the phone is being temporarily stored in a jail property room. Searching a person’s cell phone is like searching that person’s home desk, computer, bank vault, and medicine cabinet all at once. Read the opinion.

Barnes v. State (7th COA)

An in-person tip may provide enough reasonable suspicion to justify the detention and subsequent search of a suspect and the suspect’s vehicle. When a citizen-informer meets the police in person, the informer places himself in a position of accountability, and his information deserves to be given great weight. A detention based on facts supplied by a citizen-informer, which are adequately corroborated by the detaining officer, does not violate the Fourth Amendment. 

Also, the plain-view doctrine can authorize the warrantless search of a suspect’s entire vehicle. An officer’s observation of contraband or evidence of a crime in plain view inside an automobile can establish probable cause to conduct a warrantless search of the vehicle, including the glove compartment and center console. Read the opinion.


Medrano v. State (5th COA)

Chapter 273 of the Elections Code does not violate the separation of powers doctrine by granting the Attorney General power to prosecute election law violations. The Constitution gives the legislature authority to assign concurrent criminal prosecution duties to the Attorney General (AG). Giving the AG authority to prosecute election law violations does not remove any authority from prosecutors; it merely gives the AG the independent authority to prosecute one type of case in the absence of action by a local prosecutor. Because the duties of the AG are a hybrid between the powers of the executive and judicial branches, it is not a violation of the separation of powers doctrine for the legislature to grant the AG prosecutorial authority, so long as the legislature does not take away so much authority from county and district attorneys as to “practically destroy” the role of the prosecutor’s office. Read the opinion.

State v. Villareal (13th COA)

It was unconstitutional for police to perform a warrantless blood draw on the defendant based on his three prior convictions for DWI. The mandatory blood-draw statute in §724.012(b)(3)(B) of the Texas Transportation Code requires a no-refusal blood draw when a suspect has multiple DWI arrests, but the statute does not authorize warrantless blood draws. The court did not consider any implied consent arguments because it held that the State waived that argument when it stipulated at trial there was “no consent, no warrant” in the case. Read the opinion.

Hernandez v. State (7th COA)

A defendant’s confession was still voluntary even though it came after a detective said during her interrogation the defendant would never see her kids again if she didn’t tell the truth and that her cooperation might allow a judge to show her leniency. Coercive conduct alone doesn’t make a confession involuntary. The totality of the circumstances must show that the defendant’s will was overborne and her capacity for self-determination was critically impaired by the coercion. Read the opinion.


Ex Parte Coty

A forensic scientist's falsification of evidence in one case does not necessarily invalidate the evidence in all cases touched upon by that scientist. A due-process violation occurs when the evidence is both false and material. A five-part test will allow a falisty inference in favor of the defendant, and materiality must still be proven by the defendant as well. Read the opinion.

Smith v. State (1st COA)

When the State presented a defendant's disciplinary records from prison and probation as evidence, the State violated the defendant's Confrontation Clause rights by not calling the persons who put statements into those records. The disciplinary records contained subjective, detailed descriptions of incidents that were recorded by law enforcement personnel to establish specific facts and were therefore testimonial. Because the declarants were not available to testify at trial, the defendant’s Sixth Amendment rights were violated. Read the opinion.


Ex Parte Zavala - 4th COA

The Online Solicitation of a Minor statute is not facially unconstitutional just because one section requires proof the actor solicited a minor with the intent that the minor engage in sexual activity, while another section prohibits the defendant from arguing that there was no intent to actually meet the minor in person.  The gravamen of §33.021(c) of the Code of Criminal Procedure is the knowing solicitation of a minor to meet the person with the intent that the minor will engage in some form of sexual contact with that person. It does not matter what happens after the solicitation occurs because the offense has been completed. This is true even if the defendant was engaged in a fantasy at the time of the solicitation, with no intent that a meeting actually occur. Because the State is not required to prove that a meeting was intended, §33.021(d)’s prohibition against a defendant arguing lack of intent to meet does not conflict with §33.021(c). Read the opinion.



Wehrenberg v. State

The Court of Criminal Appeals held that the federal "independent source" doctrine is applicable in Texas. Like the attenuation doctrine, the independent source doctrine does not violate CCP Art. 38.23 because evidence that is initially discovered through illegal means is later legally acquired through the independent source. Read the opinion. 

Ard v. State - 14th COA

An officer's testimony that a detained alleged shoplifter was not free to leave while she was being questioned did not establish that the suspect was "in custody." Custody is not established during an investigative detention simply because the suspect is not able to leave until the investigation is completed. Even though the officer would have arrested her had she tried to leave, he never threatened to arrest her, and the officer’s unarticulated plan has no bearing on a custody analysis. 

Ex Parte Gill

When a defendant has been jailed more than 90 days without being chaged, a judge may not consider the safety of a victim or the community when setting bail. The language of CCP art. 17.15, which allows a judge to consider victim and community safety concerns in setting bail, is not imparted to CCP art. 17.151. The latter statute requires a defendant be released after 90 days through either a personal bond or a reduction of bail, and there is no language that considers the threat to a victim or the community. Additionally, it is not a violation of the separation-of-powers provision of the Texas Constitution for the legislature to require a court to release defendants under specific conditions.

Hudson v. State - 6th COA

A manslaughter instruction was not required when the evidence was sufficient to establish a lesser-included that was more severe than manslaughter but less severe than capital murder. If a possible intermediate offense was established by the same evidence the defendant relied upon to argue a manslaughter instruction, then the defendant would be disqualified from the manslaughter instruction. Read opinion.

Zamora v. State

A trial court must sua sponte give an accomplice-witness instruction when the evidence raises the issue under the theory that the witness was a party as a co-conspirator. The courts have defined “accomplice-witness” broadly enough to cover co-conspirator parties. Because an accomplice-witness instruction is “law applicable to the case” rather than a defensive issue, CCP art. 39.14 requires the court to include the instruction when it is implicated by the evidence.
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Douds v. State - 14th COA

Transportation Code §724.012(b)(1)(C), mandating a blood draw when an officer reasonably believes an individual will be transported to a hospital as a result of an intoxication-related accident, is not unconstitutional as applied in this case although the underlying DWI was a misdemeanor. Nothing in the language of the statute or the holdings of the Supreme Court in McNeely or Schmerber suggests that whether an offense is a misdemeanor or felony affects the 4th Amendment analysis. The warrantless draw in this case was supported by several exigent circumstances, including the need to investigate the crash, the reasonable belief that a passenger would be transported for medical treatment, and the passage of time before the draw could be performed.
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Farmer v. State

The defendant was not entitled to a jury instruction on the defense of an involuntary act in his DWI trial although he testified that his wife set his medications out for him, and he was unaware that he took Ambien before driving. Voluntariness, as described by PC §6.01(a), refers only to one’s own physical body movements. Although the defendant may have mistakenly taken the wrong pill due to his wife’s actions, there is no evidence that shows he did not voluntarily pick up the medication and ingest it.
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Rodriguez v. State - 4th COA

The defendant was entitled to reinstatement of the State’s original 10-year plea offer because trial counsel was ineffective during both the plea bargaining process and trial. Applying the three factors from Lafler v. Cooper, 132 S. Ct. 1376 (2012), it is clear the defendant was prejudiced because: 1) the defendant probably would have accepted the offer with effective counsel; 2) nothing indicates the State would have withdrawn the offer; and 3) although the trial court rejected this offer, she was not acting in a neutral manner when she did so. The offer must be reinstated, but the newly assigned judge retains discretion to accept or reject the plea agreement.
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Bell v. State

The defendant’s right to due process was not violated when he was shackled during trial. Although the court should have made a particularized finding of the need to shackle the defendant, a constitutional violation did not occur because the record does not show a reasonable probability that the jury was aware of the restraints.
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Staley v. State

The “competency-to-be-executed” statute, CCP art. 46.05, does not allow for the execution of a mentally ill inmate previously found incompetent who becomes competent only after he is involuntarily medicated. The statute grants the trial court jurisdiction and authority to periodically order re-examination of an incompetent defendant to determine whether he is no longer incompetent to be executed, but it does not permit an order for involuntary medication.
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Ex parte Thompson - 4th COA

PC §21.15(b)(1), which prohibits the recording, broadcasting, or transmitting of visual images of another in a location that is not a bathroom or private dressing room without the other person’s consent and with intent to arouse or gratify the sexual desire of any person, is  facially unconstitutional. The statute unconstitutionally regulates a person’s rights to photograph and to have certain thoughts. Unlike similar statutes that have been upheld, it does not require intent to invade another’s personal privacy, and it impermissibly reaches a substantial amount of lawful, protected expressive conduct.
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Lundgren v. State - 2nd COA

The trial court properly revoked the defendant’s community supervision based on a new offense occurring during the time the trial court had plenary jurisdiction and before the defendant filed his timely motion for a new trial and notice of appeal. The community supervision conditions went into effect the day the defendant pled guilty, waived his right to appeal, and was sentenced. The defendant’s argument that his “post-violation notice of appeal and motion for new trial retroactively acted as a panacea for his violations” is without merit.
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Acosta v. State - 1st COA

The offense of delivery or manufacture of a counterfeit instrument under Transportation Code §521.456 does not require proof of intent to pass the instrument off as authentic. The plain language of the statute requires proof of: 1) intent to sell, distribute, or deliver a forged or counterfeit instrument, and 2) knowledge that the instrument is not printed, manufactured, or made by or under direction of an authorized person. The fact that the defendant had printed disclaimer language on the fake licenses does not negate the culpability required for the commission of the offense, so he was not entitled to a mistake of fact instruction in the jury charge.
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Medina v. State - 14th COA

The evidence at trial was sufficient to show that the defendant’s truck, which had been modified with extra fuel tanks and a remotely operated fuel pump, was a criminal instrument intended for use in the theft of diesel fuel. Although the defendant argued the truck could be used for lawful purposes as well, the adaptations were conducive to the criminal purpose of stealing diesel fuel and made use of the truck for legitimate trucking activities illegal and unsafe.
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Rodriguez v. State - 3rd COA

The evidence was sufficient to support a conviction for felony murder with the underlying felony of injury to a child even though the alleged “acts clearly dangerous to human life” were omissions. The only felony excluded from the felony murder statute is manslaughter, so injury to a child by omission may support a felony murder conviction. The jury could have inferred from the evidence that the defendant committed acts – such as feeding her son far less than he needed – that were clearly dangerous to human life.
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State v. Barragan - 10th COA

The trial court should not have granted the defendant’s motion for a new trial “in the interest of justice” based on his claim that the State failed to correct false or misleading testimony. To be entitled to a new trial, the defendant must: 1) articulate a valid legal claim, 2) produce or point to evidence in the record to substantiate the claim, and 3) show prejudice to substantial rights. Evidence at the hearing on the motion showed the victim’s testimony was, at most, vague or confusing, not false or misleading, so the defendant failed to show he was entitled to a new trial.
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State v. Coker - 5th COA

An anonymous tip that the defendant was manufacturing methamphetamine in his home, coupled with evidence found during a search of the defendant’s trash, was sufficient to establish probable cause for a warrant to search the home. Although the defendant argued that no case in Texas has upheld a warrant based on an anonymous tip and a single trash search, the court found that the totality of the circumstances in this case supported issuing the warrant.
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State v. Ford - 14th COA

The trial court erred in granting the defendant’s motion to dismiss based on a due process claim because of a 14-year delay between the alleged offense and the indictment. The defendant was charged with aggravated sexual assault of a child, which has no statute of limitations, so he had the burden to show the delay: 1) substantially prejudiced his right to a fair trial, and 2) was intentionally used by the State to gain a tactical advantage. The defendant failed to present any evidence of improper purpose on the State’s part because at most, the delay was a result of inadequate police work by an inexperienced detective.
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Arredondo v. State - 4th COA

The trial court’s entry of two consecutive life sentences for the defendant’s aggravated sexual assault convictions did not violate the 8th Amendment prohibition on cruel and unusual punishment or contravene the intent of the Legislature in PC §12.31. Even if the sentence amounts to a de facto sentence of life without parole, nothing in the law, including Miller v. Alabama, prohibits a discretionary sentence of LWOP for juvenile offenders who, like the defendant, have committed both homicide and non-homicide offenses in a particularly heinous manner.
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Glover v. State - 7th COA

The punishment for continuous sexual abuse of a child does not violate the 8th Amendment although there is no opportunity for parole. After balancing factors including 1) the national consensus on punishment for this type of crime, 2) the moral culpability of those who commit the crime, 3) the severity of the punishment at issue, and 4) the legitimate penological interests served, the court determined the punishment is not per se cruel and unusual.
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Burch v. State

The defendant’s 6th Amendment right to confront witnesses was violated when the State introduced a lab report supported only by testimony of the reviewing drug analyst, not the testing drug analyst, in the defendant’s trial for possession of a controlled substance. There was no indication that the defendant had an opportunity to cross-examine the testing analyst prior to trial, nor was there any indication that the reviewing analyst had any personal knowledge of the tests performed in this case.
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Salinas v. Texas

The defendant’s 5th Amendment right against self-incrimination was not violated when the prosecutor argued that his pre-arrest, pre-Miranda silence when voluntarily submitting to police questioning was substantive evidence of guilt. The 5th Amendment privilege is generally not self-executing and must be expressly invoked. The defendant did not invoke the privilege in this case, and neither of the exceptions to invocation (refusing to testify at trial or government coercion making forfeiture of the right involuntary) applied in this situation.
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Wooten v. State

The trial court’s denial of the defendant’s request for a sudden passion jury instruction during the penalty phase of his murder trial did not amount to harm sufficient to reverse the sentence. Because the jury had already rejected his self-defense claim during the guilt phase of the trial, it was highly unlikely they would have found the defendant was experiencing a level of fear sufficient to lose control of his actions, as required for sudden passion.
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State v. Zalman

The trial court abused discretion in granting the defendant’s motion for a new trial when the defendant did not present evidence of the same claim raised in his motion. The two-prong Herndon test requires that the defendant: 1) state a valid legal claim, and 2) supply or point to evidence in the trial record to support the claim. Here, the defendant’s motion for new trial claimed that the verdict was contrary to the law and evidence, but at the hearing, and in an untimely amended motion, he argued only that evidence should have been suppressed.
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Tucker v. State - 4th COA

The trial court properly denied the defendant’s motion to suppress narcotics seized from his home after a search based on consent given during a traffic stop because, based on the totality of the circumstances, the consent was voluntary. The defendant contended his consent was given only because officers detained him for an unreasonable amount of time, improperly questioned him without giving Miranda warnings, and would not allow his young son to get out of the van although it had no air conditioning. However, the trial court reasonably concluded the consent was valid based on the defendant’s admission on cross-examination that his consent was voluntary and the fact that the stop lasted no more than 40 minutes.
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Youkers v. State - 5th COA

The trial judge’s Facebook communications, initiated by the victim’s father, did not constitute an ex parte communication demonstrating partiality and bias. 1) The trial judge’s actual relationship with the victim’s father was limited, and 2) his prompt and clear measures on Facebook, to the parties’ counsel, in the court’s file, and to the judicial conduct committee ameliorated any problem.
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Okonkwo v. State

Trial counsel was not ineffective for failing to request a jury instruction on the mistake of fact defense in defendant’s trial for forgery of money. Forgery of money requires the State to prove intent to defraud or harm another, which also requires the State to show the defendant knew the bills were forged. Proof of the culpable mental state necessarily proves lack of mistake regarding authenticity of the bills, so trial counsel was not objectively unreasonable in failing to request the instruction.
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Ex parte Perez

A court may consider the totality of the circumstances in determining whether a long-delayed habeas application is barred by the doctrine of laches. The federal standard requiring the State to show particularized prejudice and a complete inability to answer the application is no longer workable. The courts can consider other forms of prejudice, such as the State’s inability to retry the defendant, and weigh them against equitable considerations in favor of granting relief, like new evidence of actual innocence.
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Burd v. State - 1st COA

In a trial on the offense of aggravated assault with a deadly weapon where the defendant was instead convicted of the lesser-included offense of deadly conduct, the court, which had submitted a self-defense instruction for the primary charge, wrongly failed to apply the instruction to the lesser-included offense. The language in the abstract instruction on self-defense, “as set above,” did not reach deadly conduct. Even though the defendant failed to object to the charge, the error was harmful and a new trial is required.
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State v. Sawyer - 4th COA

The State cannot appeal from a trial court’s order rejecting a plea-bargain agreement and signing a judgment finding the defendant not guilty. The trial court’s ruling reached the merits of the case and constituted an acquittal. The State cannot appeal from an acquittal, and the judgment did not constitute a dismissal of an indictment.
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Missouri v. McNeely

The inevitable dissipation of alcohol in blood alone does not constitute an automatic exigency to support a non-consensual, warrantless blood test during a DWI investigation, but depending on the “totality of the circumstances” in a particular case—an exigency may develop. Otherwise, a warrant is required.
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Turrubiate v. State

Probable cause to believe that illegal drugs are in a home, coupled with an odor of marijuana emanating from the home and a police officer making his presence known to its occupants, does not justify warrantless entry under the exigent circumstances exception to the warrant requirement without some proof of imminent destruction based on affirmative conduct of the occupants. The five factors for consideration established in McNairy v. State, 835 S.W.2d 101 (Tex. Crim. App. 1991), are no longer adequate.
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Florida v. Jardines

Using a drug dog to sniff around the front porch of a residence constituted a search because the government trespassed on the protected curtilage.
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Ex parte Argent

To establish prejudice in an ineffective assistance of counsel claim involving plea-bargaining, the habeas applicant must show a reasonable probability that: 1) he would have accepted the earlier offer if counsel had not given ineffective assistance; 2) the prosecution would not have withdrawn the offer; and 3) the trial court would not have refused to accept the plea bargain.
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Boutang v. State - 4th COA

The trial court did not violate a defendant’s confrontation rights by admitting 1) the testimony of an alleged surrogate analyst who was not employed during the time defendant’s breath sample was provided and analyzed, and 2) the breath-test results and Intoxilyzer maintenance reports. Under Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011), cross-examination of the person mixing the reference solution is not required before the admission of breath-test results. And, following Settlemire v. State, 323 S.W.3d 520 (Tex. App.—Fort Worth 2010, pet. ref’d), the admission of the Intoxilyzer maintenance records and breath test results does not violate confrontation rights.
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Chaidez v. United States - SCOTUS

Padilla v. Kentucky, 130 S.Ct. 1473 (2010)—holding that defense counsel can render ineffective assistance of counsel for failing to adequately admonish a defendant of the immigration consequences of his guilty plea— does not apply retroactively to cases already final on appeal. Padilla broke new ground by changing the law in most jurisdictions; thus, it “developed” new law. Under Teague v. Lane, 109 S.Ct. 1060 (1989) a new law does not apply to convictions already final on direct appeal.
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Ex parte Milner

The “allowable units of prosecution” test should be applied in cases charging two violations of the same statutory provision. The allowable unit of prosecution under PC §19.03(a)(7)(B) is the killing of two or more persons, not each individual victim. Criminal attempt offenses acquire their allowable unit of prosecution from the offense attempted. Each attempted capital murder conviction under PC §§ 19.03(a)(7)(B) and 15.01(b) requires at least two victims not included as victims in other attempted capital murder provisions under the same penal code sections.
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State v. Jewell - 10th COA

Even after the advent of HIPAA, a person lacks standing to complain about the use of a grand jury subpoena to obtain his blood-alcohol test results; however, he may challenge how the State obtained his medical records. Although the grand jury subpoena used in this case was invalid, the taint of the illegal subpoena was attenuated by the subsequent valid clerk’s subpoena, so the remaining medical records were admissible.
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Romero v. State - 14th COA

The trial court properly released a stressed-out and vomiting juror during deliberations and required continuation with an alternate juror. The trial court’s finding that the juror was physically ill so as to prevent her continuing satisfied CCP art. 36.29(c). There was no evidence that the trial court was motivated to dismiss the juror based on her refusal to deliberate or her evaluation of the sufficiency of the evidence, and the defendant was not denied his state constitutional right to jury unanimity because the alternate juror was properly employed under CCP art. 33.011(b). Finally, the trial court did not wrongly deny a motion to unseal the juror’s personal information to permit a defense investigation because no outside influence was shown.
Romero v. State
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