Case of the Week Archive

Esparza v. State

A sexual assault victim's assertion that she had consensual sex
with another man two days before she was sexually assaulted by the
defendant does not preclude the defendant, during the trial, from seeking DNA
testing of material in the rape kit under CCP Chapter 64. The victim's prior sexual encounter did not preclude the defendant
from establishing that the DNA testing could have yielded exculpatory
results. In a fact-intensive opinion the Court compared to Smith v.Slate
(165 S.W.3d 361 (Tex. Crim. App. 2005)), the Court ruled that there was
no scientific evidence supporting the contention that biological
material deposited two days before the sexual assault would still be
present in the victim when the rape kit was conducted.

Esparza v. State No. PD-1616-07

Krupa v. State

The district court had authority under Family Code §54.051
to extend the defendant's juvenile probationary term after he was
transferred to the district court, placed on community supervision, and
after the expiration of the original probationary period (but within
the extended period) revoke the probation and sentence him to seven
years in prison. Under the Family Code, a juvenile is subject to the rules of CCP art. 42.12,
which applies for the remainder of the probationary period set by the
juvenile court. A district court to which the case is transferred may
impose conditions provided in art. 42.12 as long they are consistent
with those ordered by the juvenile court. The defendant violated
numerous conditions of his community supervision, and the district
court handled these violations by modifying his community supervision.
The defendant agreed to the modifications, including the extension of
his probationary period, in lieu of revocation.

Krupa v. State  No. 10-08-00166-CR

Hall v. State

In the defendant's convictions for tampering with physical evidence and
hindering apprehension in connection with a murder, the State
impermissibly withheld evidence of a punishment-phase witness's
inability to identify the defendant in a photo lineup and the
preparation prosecutors had done with the witness before trial by
showing him a single photo of the defendant. The State suppressed evidence in violation of both a discovery order and Brady.
While these actions did not ultimately cause reversible error in the
defendant's convictions, they did require a new trial on punishment. (See TDCAA Case Summaries, February 27, 2009.)

Hall v. State Nos. 03-07-00626-CR thru -00627-CR

Ex parte Watson

The defendant's prosecution for intoxication assault was not barred by
double jeopardy when failure to yield right-of-way was included as one
of the elements and the defendant had already been punished for the
offense of failure to yield right-of-way. The elements of intoxication assault required the State to prove
that the defendant had driven a car while intoxicated and by reason of
that intoxication caused bodily injury by accident or mistake. The
State needed to show only that he caused bodily injury. The manner in
which he did so was not an element of the offense.

Ex parte Watson No. PD-0294-08

Smith v. State

In the defendant's trial for capital murder, he was not entitled to a charge on the lesser-included offense of murder. Almost immediately after shooting
his girlfriend, the defendant left her apartment and deliberately
sought out her 11-year-old daughter, who was crouched in a defensive
position behind a car with no weapon in her hand. With the same gun he
used to shoot her mother, he shot the child twice at point-blank range
and then stated aloud that he was going after her older sister. The
defendant killed the child in a continuous and uninterrupted chain of
conduct occurring almost immediately after he shot and killed her

Smith v. State No. AP-75,479

Flores-Figueroa v. United States


The federal identity theft law (18 U.S.C. §1028) requires the defendant to actually know that the ID he is using belongs to another person. An illegal immigrant who used false identification was not
criminally liable because the government was unable to show that, based
on a plain interpretation of the statute, he "knowingly transferred,
possessed, or used, without lawful authority, a means of identification
of another person."

Flores-Figueroa v. United States : No. 08-108 

Christian v. State


Where the defendant was convicted of murder committed in the course of delivering a controlled substance, Penal Code §1.03
did not bar the use of a violation of a drug offense in the Health and Safety
Code as the felony required to prove an element of murder. The felony offense of murder, contained in the Penal Code, was
charged by the indictment and the manner and means of proving this form
of murder was by the commission of a felony. The felony drug offense
supplied the intent for felony murder and no new offense was created in
the indictment.

Christian v. State No. 06-07-00163-CR 

Townes v. State

Where the accepted conditions of the defendant's probation included
that he consent to any warrantless search of his person, residence or
any vehicle which he operated, occupied or possessed at any time by any
probation officer, without prior notice, the trial court correctly
denied his motion to suppress evidence of a gun found in his possession. The conditions of his probation expressly prohibited him from
possessing any contraband, including illegal weapons, controlled
substances or illegal drugs. The terms of his probation authorized a
search by any probation officer to determine whether he was complying
with the specified conditions. The evidence established the search,
conducted by a probation officer, was to determine whether he had any
illegal drugs or weapons and was valid.


Townes v. State No. 04-08-00392-CR

Villarreal v. State

In the defendant's trial for violation of a protective order,  the
court correctly instructed the jury, over the defendant's objection, that
family violence meant dating violence and in defining the terms "dating
violence" and "dating relationship". The jury charge stated that a person commits the offense of
violating a protective order if he knowingly or intentionally commits
family violence and the person has violated the protective order by
committing an assault. While the Code's definitions of "dating
violence" and "dating relationship" affect the meaning of the family
violence element of the offense, the defendant's actions in striking
and pushing his girlfriend still qualified as assaultive element.

Villarreal v. State No. PD-0984-08 

Barrios v. State

In the defendant's trial for capital murder,  the jury was charged
correctly when jurors were allowed to consider the entire charge as a
whole and were not required to unanimously agree that the defendant was
not guilty of the greater offense before considering a lesser-included
offense. The trial judge correctly read the entire charge to the jury
before it retired to deliberate. Therefore, jurors heard the
instruction on reasonable doubt before considering the issue of guilt
on any of the offenses included in the charge.

Barrios v. State No. PD-0891-08

Simmons v. State


In the defendant's trial for aggravated robbery, non-accomplice testimony under Code of Criminal Procedure Art. 38.14 sufficiently connected him to the crime. The masked robber's first and middle names were the same as the
defendant's names. The defendant wrote a threatening letter to the
accomplice witness while both were in jail. The defendant attempted to
get the accomplice witness to sign an affidavit exonerating him and
then tried to persuade two jail employees to falsely swear that they
saw the accomplice witness sign the affidavit.

Simmons v. State No. PD-0791-08 

Holmes v. State


General statements from defense counsel are not sufficient to preserve error under T.R. Evid. 103(a)(2) when a trial court denies a defense motion to cross-examine a State's expert witness. The record must show the excluded evidence so that the appeals
court can judge its admissibility and determine whether the trial court
abused its discretion by excluding it. Counsel's statements do not
qualify as a reasonably specific summary of the evidence offered,
especially when the statements seem to question the underlying science
rather than the expert's credibility, and the complainant on appeal
deals with the expert's credibility.

Holmes v. State No. PD-0453-07

Ex parte Reedy

A defendant, under a plea agreement, may waive his right to file an application for writ of habeas corpus. However, a blanket waiver of all habeas corpus relief may not beenforceable as to claims that the defendant could not reasonably haveknown about at the time of his waiver, because he could not havevoluntarily, knowingly, and intelligently waived them

Ex parte Reedy No. AP-75,862

Canty v. State


The defendant did not have a constitutional right to an expunction of the
dismissed indictment where he was charged with assault of a public
servant. The right to expunction is a statutory privilege, not a constitutional right. Code of Criminal Procedure Ch. 55
establishes the requirements for an expunction petition. By failing to
provide the required information, the defendant lost his opportunity
for relief.


Canty v. State No. 12-08-00257-CV

Jackson v. State

In the defendant's manslaughter trial, the jury charge during
guilt/innocence did not contain an improper comment on the weight of the evidence when
it stated that manslaughter was a second-degree felony and that deadly
conduct, which both parties incorrectly believed to be a
lesser-included offense of manslaughter, was labeled as a third-degree
felony. During voir dire, the trial court told the jury that the defendant
was charged with manslaughter, naming it as a second-degree felony, and
later informed them of the range of punishment for a second-degree
felony. While the degree of the crime and the severity of potential
punishment is, at best, not relevant to the guilt/innocence stage,
because the jury had already been made aware of all this information
from the beginning of the trial, a later delivery of the same
information by including it in the charge on guilt/innocence was not


Jackson v. State No. 06-08-00126-CR

Karenev v. State

After the defendant's conviction for harassment, he could not assert a
facial challenge to the constitutionality of the harassment statute for
the first time on appeal. A facial challenge to a statute's constitutionality does not
involve a question of jurisdiction. The Texas Constitution clearly
defines an indictment or information and provides that the presentment
of an indictment or information to a court invests the court with
jurisdiction of the cause.

Karenev v. State No. PD-0822-08

Hardy v. State

The defendants set up a tent in the right-of-way of a county roadduring a protest march, which violated a county ordinance but they were not properly charged and convicted of violating Penal Code §42.03.  While the county ordinance barred structures in the right-of-way,the statute under which the defendants were charged prohibitsobstruction of only part of a road easement used for vehicular travel.People who sat in chairs next to the tents were not arrested or chargedwith obstructing a highway because a chair usually isn't large enoughto obstruct another's view. When protestors were initially warned, theywere told to stay in the bar ditches and off of the road, indicatingthat the bar ditches were not considered by the officers to be a partof the road and that the demonstrators would not obstruct the highwayif they remained in the bar ditch. 

Hardy v. State PD-608-08

Vennus v. State

In the defendant's trial for possession of a controlled substance with
intent to deliver, the defendant lost his motion to suppress. He
could not later assert on appeal that the State failed to carry its burden to
prove the reasonableness of his detention and the search of his car
when he prevented the State from carrying this burden through his
objections at the suppression hearing. The defendant invited the supposed error that he raised on appeal
regarding the State's failure to prove facts that led the officer to
believe that there was contraband in his car. The suppression-hearing
record reflects that he prevented the State from fully presenting those
facts by making multiple general, nonspecific, and meritless

Vennus v. State No. PD-1540-07

Mays v. State


When a trial judge indicates that he will exclude all of the
defendant's diminished capacity evidence but invites the defense to
proffer evidence during voir dire, the defense's proffer may not cover only
the questions he would have posed during voir dire to preserve error. Because the trial judge clearly intended his ruling excluding all
diminished capacity evidence to apply to the entire trial, the
defendant was obligated to offer proof that went past the anticipated
voir dire questions to preserve error under T.R. Evid. 103.

Mays v. State No. PD-0670-07 

Young v. State

In the defendant's trial for capital murder, the jurors were correctly
charged on the issue of unanimity when the trial court failed to give
them the statutory instruction. While the jury was not given the statutorily required instruction
that they did not have to agree on the particular mitigating evidence
provided, they did unanimously find that nothing they heard warranted a
life sentence.

Young v. State No. AP-75,352

Arizona v. Gant


After a suspect has been arrested, handcuffed, and placed in a patrol
car,  officers may not automatically search his vehicle as a search incident
to arrest. Police may search the passenger compartment of a vehicle as a
search incident to arrest only if: (1) it is reasonable to believe the
suspect might access the vehicle at the time of the search or (2) the
vehicle contains evidence of the offense for which the suspect was

Arizona v. Gant No. 07-542

Triana v. State

After the defendant was arrested and jailed for driving while licensesuspended and possession of marihuana, police were not permitted to make awarrantless search of his motel room, then occupied by his girlfriend,to search for further evidence of drug dealing alleged by aconfidential informant. An investigator testified that when they visited the motel, theydid not have probable cause to search the room and were hoping togather more information so they could get a search warrant. Whilesuspicions centered on the defendant, investigators knew that he was incustody when they went to his motel room and they had no specificinformation regarding his girlfriend's possession of drugs that wouldhave given them probable cause to enter the room and conduct a search.

Triana v. State No. 04-08-00619-CR

Caballero v. State


The defendant's double jeopardy rights were violated when he was
convicted of two counts of burglary of a habitation, one with intent to
commit theft and one with intent to commit sexual assault. Even though the evidence proved that he committed both offenses,
the two counts of burglary were based on a single unlawful entry into
the victim's home. The conviction for the most serious offense (the
intent to commit sexual assault) should be retained and the other
conviction set aside.

Caballero v. State No. 04-08-00278-CR

State v. Stewart

Where the judge decided after sentencing that his assessment of
punishment was disproportionate to previous sentences, e-mailed the
defendant's attorney of his decision, and then made lengthy remarks
from the bench about his error in calculating the sentence, he also
had the authority to grant an entire new trial to the defendant rather
than a new trial only on punishment. The defendant was entitled to rely on the trial judge's memory of
how he had erred in assessing the defendant's punishment to establish
that claim. The trial judge did not grant the new trial out of sympathy
or under the belief that the defendant received a raw deal before his
court. The judge granted the new trial only after concluding that he,
the judge, had made a specific, identifiable, and quantifiable error in
calculating the defendant's punishment.

State v. Stewart No. 03-07-00735-CR

Ford v. State - 3rd COA

Ford v. State 03-06-00663-CR

The trial court incorrectly charged the jury in the defendant's
conviction of three counts of engaging in organized criminal activity
under Penal Code §32.51
(in essence, identity theft) where one count alleged that the he used
the identifying information of "Lambrique King" with the intent to harm
or defraud "King" while another count alleged that he used the
identifying information of "Kelvin Carr" with the intent to harm or
defraud "Carr." The defendant was not shown to have obtained, possessed,
transferred, or used the identifying information of any living human
being. "King" and "Carr" were fictitious identities created by the
defendant for his criminal purposes. The names, dates of birth,
identification numbers, and account numbers on the counterfeit checks
and false identity cards possessed and used were not connected to any
real individuals and were a fiction created for the defendant's fraud.

Ford v. State 03-06-00663-CR

Hammer v. State


In a father's prosecution for indecency with a child (his daughter), the trial court incorrectly excluded evidence of the daughter's other
previous false accusations of rape. The daughter, who had been removed from the mother's custody by CPS
and sent to live with her father, was angry with him for imposing rules
and a curfew. She had previously made an outcry to her father that
someone else had sexually assaulted her, after which he took her to the
hospital. She alleged that all of her mother's boyfriends had sexually
molested her and claimed to have been held at knifepoint by five men
who all raped her.

Hammer v. State No. PD-0786-08

Terrell v. State


In the defendant's conviction for indecency with a child by exposure
where the State was unable to produce tapes of his interview with
detectives, he was entitled to greater protection based on the due
course of law provision in the Texas Constitution than that of the U.S.
Constitution. Based on the court's decision in Pena v. State (Pena IV),
the court of appeals should have considered whether the defendant
preserved his complaint for review and should reconsider whether his
specific due course of law issue was timely and specific under T.R.App.P. 33.1.

Terrell v. State PD-0922-07

Hayden v. State


The trial court correctly excluded evidence of the murder victim's
status as a registered sex offender in another state during the
punishment phase of the defendant's trial. The defendant made no attempt to cross examine witnesses
concerning their statements about the victim but waited until two
witnesses finished testifying and then attempted to impeach their
testimony through another witness. The victim's status as a sex
offender was a collateral issue and not relevant to the jury's
assessment of the appropriate sentence to impose on the defendant.

Hayden v. State PD-0860-07

Pena v. State

The trial court improperly admited lab test results when the State
had destroyed the substance tested before trial, creating a due course
of law violation under the Texas Constitution. However, the defendant did not preserve his due course of law
provision claim for appellate review. Although the defendant eventually
invoked the Texas due course of law provision when he objected to
admission of the evidence, he did not argue that the Texas Constitution
provided greater protection than the federal Due Process Clause. The
defendant was obligated to put the trial judge on notice of the
specific legal theory on which he intended to advocate because the
federal constitutional standard was clearly established, the trial
judge and the State unmistakably relied solely on the federal standard,
and there was no independent interpretation on the subject of lost or
destroyed evidence under the Texas Constitution. 

Pena v. State PD-1411-07

Hathorn v. State

The defendant's direct appeal of his murder conviction was not barred by
the procedural default created when he failed to file a supplemental
brief of his Penry claim. Because the defendant's direct appeal was pending while the U.S. Supreme Court was deciding the most recent appeal in Penry
and the state of the law at the time of the defendant's trial, the
claim is not barred. The defendant was entitled to separate
consideration of mitigating evidence at trial. The jury likely believed
that it needed to consider only two issues: whether he had acted
deliberately and whether he would likely be dangerous in the future,
disregarding any concern they may feel that, given his troubled
childhood, he may not deserve the death penalty because of mitigating

Hathorn v. State AP-75,917

Steadman v. State

In the defendant's appeal of one of his convictions for aggravated
sexual assault, the appellate court improperly reviewed the case and
did not conform to the established requirements of deference to the jury's
verdict. The court of appeals made inferences in the defendant's favor
rather than reviewing the record in a neutral light. The court further
recited facts favorable to the defendant's position while overlooking
other evidence and seems to have discounted the jury's ability to
disbelieve the defendant's explanation of how the child victim might
have contracted gonorrhea. Finally, the court of appeals may have
employed an incorrect understanding of the term "penetration" in its

Steadman v. State PD-1311-08

Trejo v. State

The defendant's indictment charged aggravated sexual assault and
he did not object to the jury charge authorizing a conviction for that
offense or any of three lesser-included offenses (sexual assault,
aggravated assault, or assault). The trial court had jurisdiction
to convict him of the lesser offense when aggravated assault was
incorrectly included. The jurisdiction of the district court attaches by the return of
an indictment charging a felony, even when the actual conviction may be
on a misdemeanor. The district court retains jurisdiction of the case
to its final determination.

Trejo v. State PD-0276-08

Sierra v. State

In the defendant's felony DWI trial,  the trial court correctly found
that he used his SUV as a deadly weapon in the commission of the
offense. The defendant did not try to brake before he hit the victim's car,
despite his own admission that he was almost 250 feet from the car when
he first spotted it. Crash reconstruction data indicated that he was
traveling at a speed between public roadway speeds (35 miles per hour)
and highway speeds, allowing a jury to reasonably find that he had been
speeding and failed to maintain control of his SUV. The other driver
sustained injuries severe enough to require hospitalization for one
month following the crash.

Sierra v. State  PD-0018-08

Rey v. State

In overturning the defendant's conviction for child abandonment of his
stepson, the court of appeals misconstrued the statutory meaning of
"care, custody, or control" in Penal Code §22.04 (Injury to a Child, Elderly Individual or Disabled Individual) to apply to §22.041(b) (Abandoning or Endangering a Child). The purpose of both §22.04 and §22.041 is to protect vulnerable
individuals and the unambiguous language defining "care, custody, and
control" in one is applicable to the other. However, the defendant's
status as the child's step-parent alone did not obligate him to care
for the child. The State must show that the defendant accepted
responsibility to protect, shelter, feed, and care for the stepson.

Rey v. State PD-1687-07.

Ex parte Baker

The defendant was illegally confined when he was rearrested in 2007
after he was sentenced to a two-year state jail term in 2001 and then
was  incorrectly released from custody only one month into that
sentence. The defendant was entitled to credit toward the expiration of his
original sentence for the time that he was out of custody following his
erroneous release. The correct crediting of his sentence discharged his
sentence in 2003.

Ex parte Baker AP-76,031

Update of Weekly Case Summaries

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Quesada v. State

In the defendant's trial for misdemeanor possession of marijuana, the trial court incorrectly charged the jury by instructing that it
could impose a minimum sentence where none was required by statute, and
further that it could both fine and incarcerate the defendant without
the option of choosing one or the other. The charge failed to give the jury the option of assessing the
less-severe minimum punishment of only a fine or only a term of
confinement, but not both.

Quesada v. State No. 04-07-00615-CR

Hirsch v. State

The trial court had statutory authority to impose sex offender
registration on the defendant after his conviction for online
solicitation of a minor. In 2005, HB 2228 created the offense of online solicitation of a
minor and required anyone convicted of it to register as a sex
offender. In that same session, the legislature enacted HB 867, which
amended the same section of the registration statute but without any
reference to online solicitation of a minor as an offense subject to
registration requirements. HB 867, however, did recite the full
registration statute while amending it, which, under the principles of
code construction, reenacts the statute, regardless of the terminology
used to do so.

Hirsch v. State No. 2-08-121-CR


State v. Collier

The trial court allowed the defendant's 2002 indictment for
tampering with a governmental record to toll the limitations period for
the State's 2008 re-indictment of the offense as the state jail felony
of tampering with a governmental record. Although the original misdemeanor indictment for tampering with a
governmental record pleaded elements constituting a misdemeanor, the
indictment also invoked the district court's subject matter
jurisdiction because the original indictment showed an intent to charge
the defendant with felony tampering. The original indictment was in a
court of competent jurisdiction and tolled the limitations period for
the felony re-indictment.

State v. Collier  : 01-08-00209-CR

Keehn v. State

The warrantless seizure of an anhydrous ammonia tank from inside a van parked in the defendant's driveway was lawful. The automobile exception gave the officer the right to enter the
van and seize the tank. According to the defendant, he had used the van
in the days before the search, indicating that it was readily mobile.
Based on the officer's training and investigative experience regarding
methamphetamine production and the condition of the tank as viewed
through the window, the officer had probable cause to believe that the
tank contained anhydrous ammonia. Keehn v. State PD-0002-08

De La Paz v. State : CCA

In a former police officer's trial for tampering with physical evidence
for knowingly making false statements in a police report and aggravated
perjury for making the same false statements under oath, the trial
court's admission of extraneous-offense evidence was not a violation of Rule of Evidence 404(b). The defendant claimed to have seen three separate drug deals at
three different times, but no one else involved in the undercover
operation (including the confidential informant and the object of the
sting) did. Under the doctrine of chances, the strong extraneous act
evidence decreases the likelihood that the former officer saw any drug
deal and therefore increases the likelihood that he knew his statement
about seeing one between two of the arrestees was false.

De La Paz v. State PD-0292-08 & PD-0295-08

Perez v. State - 7th COA

Upon the defendant's guilty plea and conviction for delivery of a
controlled substance, the trial court improperly assessed attorney's
fees of $1,250 in addition to his sentence of 25 years, when he had
previously completed a form to secure a court-appointed attorney and
indicated that he was unemployed and living with a relative. There was nothing to show how the trial court arrived at the amount
for attorney's fees, nor was there any evidence to show that the
defendant could pay that amount. There was no itemized statement from
defense counsel illustrating the number of hours worked or what sum
would constitute a reasonable fee under the circumstances.
Perez v. State  07-08-0327-CR 

Alexander v. State - 6th COA


The defendant was not improperly denied his constitutional right to
exercise his religion when the trial court required him to keep a
Bible, that he wanted to display on the defense counsel's table, in a
less prominent position. There was nothing to indicate that the defendant's religious
practices or beliefs required him to prominently display his Bible
during the trial. There was no evidence that he had it for reference or
even for comfort. The trial court did not deny the defendant access to
his Bible any time he wanted to use it in a conventional way. His
actions suggested only that he wanted the jury to see it sitting in
front of him.
Alexander v. State 06-08-00176-CR

Grissam v. State - 2nd COA

The defendant was convicted and received a 12-year sentence for burglary. The jury was properly charged when the abstract paragraph of the jury
charge contained only an instruction on "intent to commit theft," but
the application paragraph contained only an instruction on "committed
or attempted to commit theft." The defendant and his accomplice entered the home through the back
door without permission. They wiped their fingerprints from the outer,
metal screen door. Despite it being midday, one carried a flashlight.
The defendant instructed the women waiting in their car to honk if
anyone drove up. The car was parked in the carport where it was
concealed from traffic on the road. When the resident confronted the
defendant and his accomplice, the men gave conflicting reasons for
being in the house. A rational jury could find the essential elements
of burglary, including intent to commit theft, as alleged in the
indictment.  Grissam v. State 2-05-422-CR

Golden v. State - 1st COA

The defendant was entitled to a bond reduction in his two drug
possession cases, one for possession of less than one gram and the
other for one to four grams and both enhanced with previous felony drug
convictions, where bond was set at $200,000 for each offense.  The defendant introduced evidence that he was a businessman,
living with his wife in the area. Prior to his arrest, he attended drug
and alcohol abuse counseling in the same community. He produced
evidence that, if released on bond, he would have assistance with
employment, could resume his counseling, and would have support from a
church and the community. Both his wife and a business associate
testified that the defendant would appear at trial. Comparing the bail
amount for similar cases where the defendant's indictment is enhanced,
but the offense was non-violent, the court found this bail amount
excessive.  Golden v. State 01-08-00575-CR and 00576-CR 



Agosto v. State - 1st COA

The defendant did not receive ineffective assistance where defense counsel
limited the defendant in his testimony on his own behalf during the punishment
phase of the trial. Defense counsel stated his concerns on the record that the defendant's testimony
would be further evidence against him, given that the defendant had already
stated that he had never been near the crime scene or seen the victim before,
which was directly contradicted by evidence of his DNA at the crime scene and of
the victim's identification of him. Agosto v. State - 01-08-00319-CR

Baldwin v. State

The officer exceeded his authority during the defendant's detention by asking the handcuffed defendant where his ID was and then reaching into the defendant's pocket to retrieve his wallet. The defendant, clad entirely in black and walking around the neighborhood at 10:30 p.m. fit a 9-1-1 caller's general description of an unknown man looking into windows in her neighborhood. When the officer approached, the defendant began walking away very quickly, acted nervous, and refused to make eye contact. There had been several recent burglaries in the area. However, these circumstances did not give rise to probable cause to arrest, so the officer's reaching into the defendant's pocket was not justified as a warrantless search incident to arrest. Baldwin v. State - PD-1630-07.

Weir v. State

A court-costs provision was valid when the trial court first orally sentenced
the defendant to 10 years' imprisonment and then in its written judgment also
required him to pay $530 in court costs. Court costs are not punitive. Therefore, that provision did not have to
be included in the oral pronouncement of the sentence as a precondition to
including it in the trial court's written judgment. Weir v. State - PD-0616-08.

Schmidt v. State

Assault by bodily injury and assault by threat are lesser-included offenses
of retaliation by threat of striking. Actual striking can constitute evidence of a threat to strike - assault
by threatening to cause imminent bodily injury. The defendant therefore was
entitled to lesser-included offense instructions on these offenses. Schmidt v. State - PD-0076-08.

Bowley v. State - 7th COA

In the defendant's trial for felony DWI, the trial court should have
instructed the jury to disregard the State's reference to previous plea
negotiations and granted a mistrial. The defendant admitted committing the acts underlying his previous
convictions but denied committing the charged offense, stating that was why he
had not pled guilty to it. On cross-examination, the prosecutor asked whether
the real motivation for not pleading guilty to felony DWI was because there had
been no agreement on a plea bargain. From this statement, a reasonable jury
could have determined that plea negotiations had occurred, that offers had been
made and rejected, and that the defendant's wishes were the major obstacle to
reaching a bargain. It also was conceivable that mentioning plea negotiations
could mistakenly lead a juror to conclude that the defendant believed himself
guilty. Bowley v. State - 07-08-0210-CR.