Case of the Week Archive

Morris v. State - CCA

The "grooming" of children for sexual molestation is a legitimate subject of expert testimony. The legitimacy of grooming as a subject of expert testimony is established sufficiently to be judicially noticed. Grooming is a subject matter that falls in the study of the behavior of offenders who sexually victimize children, a legitimate field of expertise. Although social awareness of child sexual abuse has increased, expert testimony on grooming is still useful to the jury because not all jurors are aware of the concept or have the depth of understanding to resolve the issues before them.


Morris v. State
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Randolph v. State - CCA

After the defendant testified to an alibi defense during the guilt/innocence phase, the prosecutor stated in closing argument during the punishment phase that the defendant "has not taken responsibility for this crime." This statement was not an improper comment on the defendant's failure to testify at punishment. By testifying that he was not the person who committed the aggravated robbery, the defendant expressly denied responsibility for the crime. A prosecutor can comment on a defendant's failure to take responsibility during closing argument at either the guilt or punishment phase when the prosecutor's remarks are supported by evidence in the record. 

Randolph v. State
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Desormeaux v. State

After an acquittal for capital murder, a defendant's prosecution for injury to a child by failing to obtain medical care is not barred by the doctrine of collateral estoppel. The jury in the first trial decided whether the defendant intentionally or knowingly committed an act that caused the child's death. The defendant's failure to seek medical treatment for the child was not necessarily decided. 

Desormeaux v. State
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Crider v. State - CCA

After the defendant was arrested for DWI, a search warrant for blood was issued without probable cause because the affidavit did not contain the time the defendant was stopped or arrested. The affidavit in this case stated the defendant showed signs of intoxication on June 6, but the search warrant was issued June 7, leaving the possibility of a 25 hour gap between the time the officer first stopped the defendant and the time he obtained a search warrant for blood. Distinguishing this case from State v. Jordan, there were no facts within the four corners of the affidavit to establish probable cause that evidence of intoxication would be found in appellant's blood at the time the search warrant was issued.

Crider v. State
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Harris v. State - CCA

The defendant's right against double jeopardy was violated when he was convicted of three counts of indecency with a child by exposure that resulted from a single act of exposure. The clear language of PC §21.11(a)(2)(A) (indecency with a child by exposure) indicates that the exposure, not the number of children present, constitutes the unit of prosecution. The child victim's name is not a necessary element of proof, and the defendant committed only one offense when he exposed himself to three children. 

Harris v. State
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Rodriguez-Flores v. State – 3rd COA

The trial court wrongly admitted the defendant's incriminating statements to a pretrial services officer employed to advise on pretrial bond. Although the witness was not a typical agent of the state conducting a custodial interrogation, the witness's testimony about the defendant's unwarned statements changed her role from one of reporting to the court to a state agent collecting incriminating evidence for prosecution. Nevertheless, the error was harmless.

Rodriguez-Flores v. State
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Moulton v. State - 6th COA

A jury charge that allowed the jury to convict for intentionally or knowingly causing death by asphyxiation by manner and means unknown to the grand jury was erroneous because the evidence at trial was insufficient to establish that the manner and means was unknown. Following Sanchez v. State, No. PD-0961, 2010 Tex. Crim. App. LEXIS 1242 (Tex. Crim. App. Oct. 6, 2010) (reh'g pending), the instruction should not have been included in the charge. After all of the evidence was in, there was a known choice of several options for manner and means. Thus, these options should have been submitted to the jury because the manner and means was not entirely unknown.

Moulton v. State
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Sweed v. State - CCA

In an aggravated robbery case, the trial court failed to submit a lesser-included jury instruction for theft. The evidence presented was sufficient to raise a fact question concerning whether the defendant's use of the knife occurred in the course of or in immediate flight from the theft. The requested charge should have been submitted to the jury to determine whether theft was a valid and rational alternative to robbery. The case is remanded to the court of appeals for harm analysis.

Sweed v. State
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Gutierrez v. State – 6th COA

Upon revocation of community supervision, the violated term—that the defendant leave the U.S.—was void and the revocation could not stand. Immigration matters are within the exclusive jurisdiction of the federal government therefore a condition of state community supervision requiring a defendant to leave the country violates the Supremacy Clause of the U.S. Constitution.

Gutierrez v. State
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Rushing v. State - CCA

A prior sex-offense conviction under the Uniform Code of Military Justice qualifies as a "conviction under the laws of another state" for enhancement purposes under PC §12.42(c)(2)(b)(v). Gov't Code §311.005(7) defines "state" to include any area subject to the legislative authority of the United States. A UCMJ conviction is deemed to have taken place on United States soil and the defendant's subsequent conviction was properly enhanced under PC §12.42(c)(2)(b)(v).

Rushing v. State
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Pena v. State - CCA

Brady applies when the State unintentionally fails to disclose the audio portion of a videotape containing a request the defendant made to police to test the controlled substance. The duty to disclose existed because the audio recording was known to the police but unknown to the defendant, it supported his defense, and the State failed to disclose the audio portion of the videotape.

Pena v. State
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Coronado v. State - CCA

The use of written interrogatories in lieu of live testimony and cross-examination, as set out in CCP art. 38.071, §2, does not satisfy the Sixth Amendment rights of confrontation and cross-examination.  A list of written interrogatories, posed by a forensic examiner to a child in an ex parte interview, is not a constitutional substitute for live cross-examination and confrontation.
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Tollefson v. State - 4th COA

Expert opinion testimony based on testing performed by a non-testifying witness was admissible. Not only was the expert present when the non-testifying witness test-fired the weapon, but she was also the one who analyzed the findings and prepared the report on those findings. The non-testifying witness merely fired the weapon at the expert's request.

Tollefson v. State
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Chavis v. State - 8th COA

An officer did not violate state wiretapping law (PC §16.02 and CCP art. 18.20) by browsing a suspect's computer files shared on a "peer to peer" network.  By applying an interpretation of similar federal law, the court found the shared files were not "in flight" at the time they were viewed.

Chavis v. State
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United States v. Hernandez-- Fifth Circuit

A driver had standing to challenge the use of the GPS device placed on his vehicle by FBI agents because he drove the vehicle with consent, but he lacked standing to challenge its placement because the vehicle was not registered to him. Also, the DEA agents' use of the surreptitious GPS device to track Hernandez was not a search within the meaning of the Fourth Amendment. Suppression of the evidence was not required. The court left for another day whether a GPS device that continuously and precisely monitors location would constitute a search.

United States v. Hernandez.   Read Opinion.

State v. Jordan

A blood search warrant was valid when the affidavit contains the date but not the time of the observations that led the officer to conclude the defendant had committed a DWI. All the observations contained in the affidavit were the elements of the offense, so it was a reasonable inference that the observations occurred on the same date that the offense was alleged to have occurred. The magistrate had a substantial basis for determining probable cause despite the failure of the affiant to specify the time of the stop. The defendant also argued that the blood draw would simply be cumulative evidence because police had already determined he had consumed alcohol. This argument was also rejected.

State v. Jordan No. PD-1156-10

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Bullcoming v. New Mexico, [5-4]

The Confrontation Clause does not permit prosecutors to introduce a forensic laboratory report—a BAC report—containing a testimonial certification through in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification. The accused has the right to confront the analyst actually making the certification, unless the analyst is unavailable and, pretrial, the accused had the right to cross-examine the analyst. Here, the defense was surprised by the analyst's unexplained unavailability at trial and had not had the opportunity to cross-examine him on the testimonial evidence pretrial.

Bullcoming v. New Mexico, [5-4]  No. 09-10876

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J.D.B. v. North Carolina (5-4)

The age of a child subject to police questioning is relevant to the custody analysis of Miranda. "So long as the child's age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of that test."

J.D.B. v. North Carolina (5-4) No. 09-11121

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Archie v. State

The State's rhetorical questions during final argument were improper comments on the defendant's failure to testify. However, the trial court did not abuse its discretion in denying the defendant's motion for mistrial.

Archie v. State No. PD-0189-10

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Rodriguez v. State

Evidence required suppression under Code of Criminal Procedure art. 38.23 because individuals cooperating with the police trespassed by entering a gambling place from which the owners had banned them to gather the evidence that served as the basis for the search warrant. The State's reliance on the "four corners rule" was mistaken because the attack was not on the probable cause to support the warrant and the State did not challenge the trial court's ruling that the individuals trespassed. Also, at trial, the State did not develop the "good faith" exception or the public interest language of Penal Code §9.21, and the trial court did not rule on these arguments so the appellate court does not reach them.

Rodriguez v. State Nos. 12-10-00118-CR through 12-10-00121-CR

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Sanchez v. State

Statutory county court judges do not have authority to issue blood search-warrants for execution in another county. Because there is no statutory authority expressly authorizing the practice. While district judges have authority to issue search warrants for execution within any county in the state, justices of the peace and a county court-at-law judges are restricted to their own counties.

Sanchez v. State No. 01-10-00433-CR 

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Kentucky v. King (8-1)

The exigent circumstances exception to the search warrant requirement was not invalidated by police action because officers could not have foreseen that their conduct would prompt the occupants of the residence to destroy the evidence. So long as police gain entry lawfully—not by an actual or threatened violation of the 4th Amendment—the exigent circumstances exception applies. Here, the police did not create the exigency when they smelled marijuana outside an apartment door, announced their presence, heard noises consistent with the destruction of evidence, and kicked in the door. Moreover, the lower courts' "exceptions" to the exigent circumstances exception, namely, (1) bad faith, (2) reasonable foreseeability, and (3) probable cause and time to secure a warrant, are rejected as inconsistent with 4th Amendment jurisprudence.

Kentucky v. King (8-1) No. 09-1272

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Meekins v State

The defendant gave voluntary consent to search his vehicle even when the officer asked for permission six times and the final answer was "I guess." The trial court noted that when the officer asked the defendant to step out of the vehicle the defendant did so. If he had intended to refuse he would have done so at that point. The CCA also noted that it would have upheld the trial court's finding if the trial court had found no voluntary consent based on the totality of the circumstances.

Meekins v State No. PD-0261-10


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Elizondo v. State

The store's loss prevention officer was not acting as a state agent when he obtained the defendant's confession in the "Civil Demand Notice" and as a result there was no violation of the Fifth and Fourteenth Amendments nor Article 38.22 of the CCP. Even though the confession was obtained to help with the prosecution, it was also used to serve the store's interests in civil and punitive actions. Police were not involved in or aware of the confession until after it was completed.

Elizondo v. State No. 07-10-00213-CR

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State v. Rodriguez

The State's information was defective because it failed to allege "with reasonable certainty the act or circumstance which indicates Rodriguez discharged the firearm in a reckless manner." By only stating the defendant "recklessly discharged a firearm by pulling the trigger on a firearm which contained ammunition and was operable," the State addressed how he discharged the firearm, but not how the defendant was reckless. The Code of Criminal Procedure requires language that sets out the acts relied upon to constitute recklessness.

State v. Rodriguez No. PD-0463-08

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Connick v. Thompson (5-4)

A district attorney's office can not be held liable under 28 U.S.C §1983 for failure to train based on a single Brady violation, not under the very narrow range of circumstances constituting single-incident liability. Also, Thompson failed to prove a pattern of similar constitutional violations.

Connick v. Thompson (5-4)No. 09-571

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Martin v. State

The offense of continuous sexual assault (CSA) does not violate constitutional or statutory jury unanimity provisions. The court has said this before, despite a Hawaiian court's recent ruling to the contrary. Further, the law denying parole for CSA is not unconstitutional. There is a rational basis for the legislature to deny parole to persons convicted of continuous sexual abuse of a child but to allow parole to persons convicted of other sexual offenses against children younger than 14.

Martin v. State No. 03-10-00202-CR

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Johnston v. State

A police officer may conduct blood draws in a non-medical environment. Simply being a police officer does not disqualify a person from performing a blood draw. The officer had prior training and experience as an EMT. While a medical environment is ideal, it does not mean that other settings are unreasonable under the Fourth Amendment.

Johnston v. State No. PD-1736-09


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Skinner v. Switzer


 A post-conviction claim for DNA testing can be pursued in a 28 U.S.C. §1983 civil rights action.  Despite the remedy available under Texas Code of Criminal Procedure Ch. 64. But if the inmate successfully uses the §1983 avenue, the inmate will still need to seek habeas relief to attack the trial court’s judgment.  


Skinner v. Switzer Cite No. 09-9000


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Michigan v. Bryant

The trial court properly admited a shooting victim’s on-scene statements given in response to the officers asking: “What happened, who shot him, and where did the shooting occur?” The trial court properly admitted the victim’s identification, description of the shooter, and location of the shooting. The circumstances of the interaction objectively indicated that the primary purpose of the interrogation was to enable police assistance to meet an ongoing emergency, primarily because the crime happened in a public place and involved a gun.

Michigan v. Bryant No. 09-150 

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Carlson v. State

A pedophile's videotapes were obtained by the victim's theft and were still admissible under art. 38.23. If the conduct falls within that permitted in Jenschke v. State, 147 S.W.3d 398, 400 (Tex. Crim. App. 2004). Here, the victim filed a police report within 48 hours of relieving the pedophile of the tapes and, when requested, promptly made them available to the police, so they were admissible.

Carlson v. State No. 01-09-01030-CR

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United States v. Olivares-Pacheco

A roving Border Patrol did not have reasonable suspicion to stop a vehicle carrying illegal aliens. “We are convinced that the district court in the instant case denied the motion to suppress on the most de minimis articulation of facts of any case we have encountered.”  The stop, on an interstate 200 miles from the border, occurred during Monday morning work hours.  The subject of the stop was an otherwise “unremarkable” truck dragging brush beneath and carrying six men and women.  The agents finally conducted the stop because, as they followed the pickup, one occupant pointed at something in an "unremarkable" field just so the other occupants had reason not to look at them.

United States v. Olivares-Pacheco No. 10-50063

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Beechum v. State

Two juvenile probation officers lawfully seized marijuana from an occupant of a parked car. Their approach was merely an encounter: While conducting a probation check on a residence, the officers parked behind a car with three occupants, saw smoke, smelled marijuana, and saw the drugs in plain view. When asked about the drugs, the defendant simply handed them over.

Beechum v. State No. 04-10-00276-CR

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Derichsweiler v. State

The defendant's non-criminal behavior was enough to justify an investigative stop without reasonable suspicion of a particular offense. There is no requirement to point to a particular offense, but rather reasonable suspicion that he was about to engage in criminal activity.

Derichsweiler v. State No. PD-0176-10

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T.L.B. v. Texas Dept. of Pub. Safety

The trial court properly denied a petition for expunction after the State dismissed the case due to the victim's death. The petitioner failed to show that the indictment was dismissed
because "the presentment had been made because of mistake, false
information, or other similar reason indicating absence of probable
cause at the time of the dismissal to believe the person committed the
offense." Simply, the State's inability to prove the case did not mean
the grand jury lacked probable cause.

T.L.B. v. Texas Dept. of Pub. Safety No. 03-10-00196-CV

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Lykos v. Fine


A trial judge may not hold a pretrial hearing on the constitutionality of the death penalty. There is no basis under Texas law to conduct a pretrial evidentiary
hearing to determine the "as applied" constitutionality of a state
penal or criminal procedural statute.

Lykos v. Fine Nos. AP-76,470 & AP-76,471

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$27,877.00 v. State - 2nd COA


The Carrollton police lawfully searched a residence outside their city limits but within the same county. As a home rule municipality, the police had countywide
jurisdiction so they could both obtain a search warrant and execute it
within the same county.

$27,877.00 v. State


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Woodard v. State - 1st COA

The evidence did not support convictions for possession of a controlled substance
both at Woodard's residence and in a correctional institution. Although the evidence was sufficient to prove possession of the cocaine in
her home, it was insufficient to prove she possessed it in the jail. The police
arrested Woodard for domestic violence at her home and transported her along
with her purse where the cocaine was found, but Woodard exercised no care,
custody, control, or management over the purse in jail.
Woodard v. State Cite Nos. 01-09-00133-CR and 01-09-00134-CR  

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Bailey v State

A defendant must form the mens rea of "intentionally, knowingly, or
recklessly" at the time the conduct is completed in order to be guilty of the crime of obstructing a
highway. A person must engage in the conduct with the requisite mental state. It
would not be an offense if the defendant formed the "intent" to obstruct
the highway at a later time because the mens rea must exist at the time
the act is performed.

Bailey v State No. 04-08-00633-CR


Saavedra v State

A police officer is permitted to testify about an admission from a
defendant made through an interpreter even if the interpreter is not
called to the stand. If it can be demonstrated that the party authorized the
interpreter to speak for him on the particular occasion, or otherwise
adopted the interpreter as his agent for purposes of translating the
particular statement, then the out-of-court interpretation may properly
be admitted under Rule 801(e)(2)(C) or (D) of the Texas Rules of Evidence.

Saavedra v State No. PD-0198-08

Stine v State

It was proper for the judge to make an initial determination
of the defendant’s competency based both on his own observations and a
psychiatrist’s report, rather than empanel a jury to make the determination. The statute requires the court to determine by informal
inquiry whether there is some evidence from any source that would support a
finding that the defendant may be incompetent to stand trial. Tex. Code Crim. Proc. Ann. art. 46B.004 Testimony
from the defendant and the evaluating psychiatrist were enough evidence for the
judge to make a determination of competency.

Stine v State No. 06-09-00044

Ex Parte Miller

The defendant received ineffective assistance of counsel on his appeal when his appellate
counsel did not contest the legality of applicant’s sentence even though the
State failed to prove his prior convictions were sequential. Had appellate counsel raised this issue, the appellate
court would have vacated the sentence and remanded for a new trial on

Ex Parte Miller No. AP-76,167


Gardner v. State

The court was correct in admitting the defendant's statements made to
the detective when the defendant was the "focus" of the investigation. Being the "focus" of the investigation does not necessarily render a person "in custody" for purposes of receiving Miranda
warnings or those required under article 38.22 of the Code of Criminal
Procedure. The defendant voluntarily spoke with the detective who told
the defendant that he was not under arrest.

Gardner v. State No. AP-75,582


Ex Parte Quintana

A prosecutor can single out a public official by denying them pretrial diversion or deferred adjudication. While the decision might amount to discriminatory selection, the
decision to prosecute public officials is rationally related to a
legitimate governmental interest because prosecuting elected officials
will or is likely to receive media attention, and such a prosecution
serves to deter potential similar conduct by others. However, the sole reason for denying pretrial diversion may not be the defendant's position as a public official. Denial of pretrial diversion based solely on the defendant's
position is vindictive prosecution in relation to the defendant's legal
right to run for a public office. In this case, however, there were
additional reasons and denial of pretrial diversion was not based
solely on the defendant's status as a public official.

Ex Parte Quintana No. 08-08-00227-CR 

Woods, Ex Parte

A previously unconsidered affidavit of another psychologist that
reaches an initial conclusion consistent with a diagnosis of mental retardation
will not be enough to meet the requirements of Article 11.071, §5(a)(3). While the review is necessarily fact-specific, the defendant must prove
to the court that there is evidence that could reasonably show, by clear and
convincing evidence, that a rational trier of fact would find that he is
mentally retarded.

Ex Parte Woods No. AP-76,034

Hardy v. State

A trial judge can not grant early discharge from a deferred adjudication and relieve a defendant from reporting as a sex offender. The judge may dismiss the proceedings and discharge a defendant,
other than a defendant charged with an offense requiring the defendant
to register as a sex offender under Chapter 62. The judge may not
dismiss the proceedings and discharge a defendant charged with an
offense requiring the defendant to register under Chapter 62.

Hardy v. State No. 06-08-00213-CR



Tapps v. State

A state jail felony is a felony for enhancement purposes under Section 46.04(a).As a result, a state jail felony can be a predicate felony conviction under Section 46.04(a).

Tapps v. State No. PD-0946-08

Sawyer v. State

When dealing with
adjudicating guilt and imposing sentence in deferred adjudication cases
§5(b) of Article 42.12 controls over §15(a)(1). Although the 2007 version of Article 42.12, §15 called for mandatory
community supervision in some drug cases, §5(b) is the more specific
(and therefore controlling) statute in deferred adjudication cases. The
Beaumont court joined the Dallas Court of Appeals in holding that §5(b)
controls over §15(a)(1) in deferred adjudication cases.

Sawyer v. State No. 09-08-00229-CR

Smiles v. State

The prosecutor was not allowed to prove the value of a replacement item rather than
the item that was actually stolen if the stolen item was no longer
available. The prosecution had evidence of the cost of a similar air
conditioner unit but never introduced evidence of the actual value of
the property stolen. The defendant stole only the exterior portion of
the unit and left the now-useless interior unit behind. Because only
part of the unit had been stolen, the prosecution needed to show the
value of that portion, not the total value of the ruined unit.

Smiles v. State No 14-08-00617-CR