Case of the Week Archive

Loun v. State - 6th COA

The trial court committed harmful error when it admitted the prior recorded
testimony of an eyewitness during the punishment phase of the defendant's murder
trial when there was debate as to whether the now out-of-state witness was
unavailable under Rule of Evidence 804(a)(5). The State must make some good-faith attempt to produce the witness at trial
or to show that any efforts would have been futile. The State argued that it
would have been too expensive to bring the witness in from out of state and in
the alternative that it should not be required to subpoena the witness because a
subpoena does not reach across state lines. Because there is no evidence of any
good-faith effort on the State's part to secure the witness, the trial court
abused its discretion by admitting the prior recorded testimony. Loun v. State06-07-00174-CR. -

Jabari v. State - 1st COA

The State was under no duty to produce evidence for which there was no actual proof of existence. Where a witness testified that she thought the defendant had taken a drink
from a glass, an officer did not recall seeing the glass at the scene, no glass
was taken into evidence, and no evidence was presented that the State ever
actually possessed and/or withheld the glass, the defendant failed to meet his
burden in showing that a Brady violation occurred. Jabari v. State - 01-07-00922-CR.

Carmen v. State - 1st COA

The defendant's request for a self-defense instruction was enough to alert the
trial court that he was requesting the justification defense of deadly force in
defense of one's person. The defendant's objection to the omission of self-defense from the charge
was specific enough to place the trial court on notice that he was requesting
the charge of deadly force in defense of one's person. Here, the defendant was
the victim's target of frequent abuse and starvation which led to multiple CPS
interventions, he had been repeatedly threatened with death by the victim, and
he had indicated to others that he was afraid of the victim. The request for
self-defense could only have meant a request for an instruction concerning
self-defense with use of a deadly weapon or deadly force, or deadly force in
defense of one's person. Carmen v. State - 01-07-00069-CR.

Williams v. State

The title of the investigation and the evidence destroyed did not need to match in an indictment alleging tampering with or fabricating physical evidence under Penal Code §37.09(a)(1)? As long as the offender destroyed something with intent to impair its availability as evidence in an investigation that he knew was in progress, the elements of the offense were satisfied. Williams v. State - PD-0470-07.

Tucker v. State

The evidence was legally sufficient to show that the object that caused the
victim's wounds was a deadly weapon. While the use of a deadly weapon cannot be inferred solely from a victim's
injuries, a jury could still conclude that the defendant used a knife as a
deadly weapon even when the knife was not introduced into evidence. The victim
had a stab wound going all of the way through her arm, which could have severed
a major blood vessel or nerve, placing the victim's life, or at least the use of
her arm, in jeopardy. In addition, a stab wound to the back of the victim's neck
near her spine could carry at least some potential for serious bodily injury,
paralysis, or death. Two police officers, one from the homicide division and
both with lengthy experience, testified that the injuries were inflicted with a
deadly weapon. Tucker v. State - PD-0742-07.

Ex parte Webb

The defendant's death penalty conviction was final when the Court of Criminal
Appeals refused his out-of-time petition for discretionary review (PDR) after
previously granting him the right to present it. A conviction from which an appeal has been taken is final for the purposes
of Code of Criminal Procedure article 11.07 when the clerk of the
court of appeals issues that court's mandate. When the clerk of the Court of
Criminal Appeals issued a mandate to the court of appeals that the defendant's
appellate process had been reinstated, that action held the court of appeals'
mandate temporarily dormant until the higher court could dispose of the
defendant's out-of-time PDR. The appellate court was not required to recall its
mandate or have its clerk issue a new mandate once the higher court refused the
PDR. Ex parte Webb - AP-75,804.

Williams v. State

The jury instruction on mental retardation was not inconsistent and was not
harmful to the defendant in his trial for capital murder. The jury instruction appropriately tracked the definitions of mental
retardation provided by the American Association on Mental Retardation and in
Briseno. Extensive testimony was presented by former teachers,
employers and psychiatrists and the parties' closing jury arguments made clear
that the issue was litigated before the jury. Willams v. State - AP-75,541.

Bartlett v. State -

The trial court commited a jury-charge error when it singled out evidence
of the defendant's refusal to take a breath test in the charge. A court is allowed to admit evidence that a defendant refused to take a
breath test, but there is no statutory language directing a jury to attach any
special weight or significance to that evidence. Texas law does not establish
any presumption in a DWI case stemming from a defendant's refusal to take a
breath test. With no presumption, the trial court committed error in instructing
the jury on inferences that it could or could not have drawn from the evidence
presented to ultimate or elemental facts. Bartlett v. State -PD-1461-07.

State v. Wiesman - 3rd COA

The trial court committed error when it quashed indictments after it concluded
that, under the doctrine of in pari materia, the prosecutions must be
brought under Labor Code §418.002(a), which criminalizes fraud in obtaining
workers' compensation insurance, and not under Texas Penal Code §32.46(a)(1) and
(b)(7) (securing execution of documents by deception). The two statutes do not have the same purpose or objective. Instead, they
were intended to cover different situations and protect different interests.
Although the same conduct may sometimes violate both statutes, the statutes are
not in pari materia. State v. Wiesman - 03-07-00661-CR.

Ex parte Graves - 10th COA

A defendant may not bring a speedy trial claim through an appeal after denial of his
pretrial habeas application. The appropriate remedy for the defendant's speedy trial claim is a pretrial
motion to set aside the charging instrument. Ex parte Graves - 10-08-00189-CR.

Guyton v. State - 10th COA

The evidence was not factually sufficient to support the defendant's conviction for
three counts of possession of a controlled substance with intent to deliver. Nothing in the record reflected that the defendant was arrested in a high
crime or high drug area, that the drugs found on him were packaged as to suggest
that he was a drug dealer, that he possessed any drug paraphernalia, or that he
possessed a large amount of cash. Guyton v. State - 10-07-00070-CR.

Johnson v. State - 9th COA

The trial court commited error when it denied the defendant's request for a
self-defense instruction. Because others had witnessed violence between the victim and the defendant,
the victim had previously physically and verbally assaulted the defendant over a
long period of time, the victim had made motions toward hitting the defendant in
the seconds before the defendant stabbed the victim, and the defendant was
afraid of the victim, a rational jury could have found that the defendant acted
in self-defense and should have received such an instruction. Johnson v. State - 09-06-510 CR.

Lancon v. State - 4th COA

The evidence in this homicide case was factually sufficient to uphold the
conviction where the evidence was contradictory and largely based on the jury's
determination of the credibility of the witnesses. The appellate court's previous finding of factual insufficiency was
rejected by the Court of Criminal Appeals, so on remand the evidence was
re-evaluated by looking through a neutral lens and giving almost complete
deference to the jury's determination of credibility. Using that standard, the
court found that it was the jury's province to resolve the evidentiary conflicts
based on the credibility of the witnesses. Lancon v. State - 04-05-00164-CR.

Lakey v. Taylor - 3rd COA

In a civil lawsuit where plaintiffs alleged that the State's failure to provide
adequate treatment to persons who have been found incompetent to stand trial was
unconstitutional, the trial court did not improperly deny the Department of State
Health Services' plea to the jurisdiction based on sovereign immunity. Without an express waiver of sovereign immunity, the State, its agencies and
its officials are generally immune from suit. However, sovereign immunity does
not shield a governmental body from a suit for equitable relief for a violation
of constitutional rights. Lakey v. Taylor - 03-07-00700-CV.

Llamas v. State - 7th COA

The State met the evidentiary predicate to admit a surveillance video
duplicated onto a DVD without establishing a full chain of custody. Testimony was heard regarding how the data came to be captured on the hard
drive of the computer at the scene, how the data was transferred from the hard
drive to a CD- Rom, and when and how the police took possession of the CD-Rom.
The officer who transferred the data to the DVD testified that it was an exact
copy of the data contained on the CD-Rom. Llamas v. State - 07-07-0281-CR.

Cantrell v. State - 7th COA

The evidence was not legally sufficient to show the use of the car as a deadly weapon in
the defendant's DWI when he did not violate any traffic laws and was traveling
in little to no traffic. Testimony from the officer who made the stop and from the DPS officer who
performed the standard field sobriety tests indicated that the defendant did not
violate any traffic laws and was not driving dangerously. There was no testimony
about any other vehicles on the road and only a general observation that traffic
was moderate at the time of the stop. This evidence posed only a hypothetical
risk to the driving public and did not rise to the level of using a deadly
weapon. Cantrell v. State - 07-07-0472-CR.

Garza v. State - 1st COA

The trial court erred when, after the jury was sworn and impaneled, it sua
declared a mistrial following the hospitalization of one juror and
the discovery that another would be unavailable later in the week. The defendant's retrial for driving while intoxicated is barred by double
jeopardy. The trial court could have considered the less-drastic alternative of
proceeding to trial with five jurors upon receiving a written waiver from the
State and the defendant. Garza v. State - 01-07-00740-CR.

Hines v. State - 6th COA

The trial court erred when it allowed the State to repeatedly tell jurors that they could arrive at a nonunanimous verdict during the State's closing argument. The indictment alleged that the defendant did "with the intent to arouse or gratify" his sexual desire, "intentionally or knowingly engage in sexual contact" with the victim by "touching the anus and genitals and breast" of the victim. The jury charge directed the jury to find the defendant guilty if he did "intentionally or knowingly . . . engage in sexual touching the anus or genitals or breast." The charge, as delivered, made it possible for the jury to arrive at a nonunanimous verdict which is prohibited by the Texas Constitution.  Hines v. State - 06-08-00004-CR.

Rendon v. State - 3rd COA

While a general allegation of, or allusion to, sexual activity does not constitute an obscene comment for the purpose of prosecution for harassment, the specific language and its usage in this case do qualify because the words were spoken with the intent to harass, annoy, alarm, abuse, torment, or embarrass the complainant. The vulgar and yet often-used word, "f***," when used as a noun as in this case, has as its primary definition "an act of sexual intercourse." A rational jury could find beyond a reasonable doubt that the defendant's comment to the complainant that she "would only charge fifty cents for a f***" did contain a patently offensive description of an ultimate sex act, specifically sexual intercourse. Rendon v. State - 03-07-00616-CR.

Stringer v. State - 2nd COA

The defendant forfeited his Confrontation Clause objection to the felony
history portion of his PSI when he placed his criminal history at issue and
accepted the benefits of the order requiring the PSI. He was estopped from asserting a
Confrontation Clause objection. Stringer v. State - 2-05-111-CR.

Taylor v. State

The hearsay exception of Rule 803(4) (Statements of Purposes of Medical Diagnosis or
Treatment) does not apply to testimony from a licensed professional counselor who
summarized what the sexual assault complainant had told her about the offense. The counselor testified that she was seeing the complainant for two reasons:
1) to help the complainant deal with the psychological aftermath of the sexual
assault and 2) to help the complainant cope with her resulting anger. It is not
apparent that knowing the defendant's identity was pertinent to the
complainant's treatment. There is nothing in the record making it apparent that
the complainant understood that truthfulness about the identity of her assailant
was important to the success of her treatment. Therefore, these predicate facts
cannot be presumed without effectively relieving the proponent of the hearsay
evidence (here, the State) of its burden to establish the existence of a valid
exception to the hearsay rule. Taylor v. State - PD-1370-07.

Pecina v. State

The defendant's confession was not valid where the defendant requested the appointment of counsel but also indicated a willingness to talk to police before counsel had been appointed. Saying "yes" when asked by the magistrate if he wanted a court appointed attorney was enough to invoke the defendant's Sixth Amendment right to counsel. Answering "yes" when asked if he wanted to speak to detectives does not indicate that the defendant initiated the contact as required under the Edwards bright-line rule. Pecina v. State - PD-1159-07.

State v. Iduarte

The exclusionary rule does not apply to evidence of an aggravated assault on a peace officer alleged to have occurred after an unlawful entry and search. Evidence of the charged offense did not exist before the officer's challenged actions because the charged offense had not yet happened. When the defendant pointed a gun at the officer, that act was an independent criminal offense and was committed after the complained-of entry into the apartment. The occurrence of the independent offense was not causally connected to the officer's allegedly illegal entry. State v. Iduarte - PD-1341-07.

Fischer v. State

The State's pretrial proffer of evidence that appellant had access to the murder weapon near the time of the murder did not satisfy the burden of proof beyond a reasonable doubt for an extraneous offense. However, the court found that it was not legally significant that the State's pretrial proffer did not satisfy this burden so long as the evidence presented by the end of trial did meet it.  Fischer v. State, PD-1613-07

Reed v. State

The evidence was not legally sufficient to convict the defendant of one count of deadly conduct in addition to one count of misdemeanor assault when he discharged a firearm inside a building. In the charging instrument, committing deadly conduct was expressed as "knowingly discharging a firearm at or in the direction of a habitation, building, or vehicle." Because the evidence showed that the defendant was inside his home when he discharged the firearm, the evidence was insufficient to sustain the deadly-conduct conviction as charged.  Reed v. State, PD-366-07

Arredondo v. State - 11th COA

Evidence of two sexual assaults committed with a co-defendant is not sufficient to establish the combination required by Penal Code §71.02 for organized criminal activity. While a rational juror could consider the co-defendant's plea of guilt to sexual assault, that plea alone does not support the appellant's conviction for engaging in organized criminal activity. §71.01 requires three or more people to establish the combination. Arredondo v. State - 11-07-00143-CR

McClain v. State - 6th COA

An employee was not guilty of theft of trade secrets when the employee created new documentation based on previously released material and then left to begin his own business, taking that material with him. Although the employee may have obtained the information wrongfully, he was not guilty of theft of trade secrets. When information is placed in the public domain, it is no longer a trade secret and exclusive ownership rights evaporate. Without an express assignment of his rights or evidence that he was employed for the purpose of developing trade secrets, the employee owned any improvements he made to the materials, subject to any shop rights held by the employer.  McClain v. State - 06-07-00057-CR.

Thompson v. State - 4th COA

The trial court did not err when it allowed the victim's mother to hold the child to show his injuries while the mother testified against the defendant accused of injuring the child. There was not a clear disparity between the degree of prejudice that the presence of the child victim may have created and the probative value to the jury. Where expert testimony indicated that the child's injuries prevented him from reaching a normal developmental stage, a visual depiction of the child properly allowed the jury to observe the child's current physical condition. Thompson v. State - 04-07-00565-CR.

Prudholm v. State - 1st COA

It was erroneous for the trial court to allow a California felony
conviction for sexual battery as an enhancement during the punishment phase in
the appellant's trial for sexual assault of a child. Penal Code §12.42(c)(2)(B)(v) requires that an out-of-state
statute contain elements that are substantially similar to the elements of one
of the listed Texas offenses when used for enhancement purposes. The California
offense did not contain elements substantially similar to the Texas elements and
carried a punishment that was significantly less severe. Prudholm v. State - 01-06-00759-CR.


Ex parte Campbell

A parolee who has never been convicted of a reportable
offense may be nonetheless required to comply with sex offender conditions of
early release. Government Code Ch. 508 authorizes the parole board generally to
impose sex offender conditions and specifically a child safety zone
condition. Ex parte Campbell - AP-75,838.

Gonzales v. State - 7th COA

The State is allowed to prosecute for each victim kidnapped and not for
the number of aggravating factors that may be present in the case.
Aggravated kidnapping is a result-oriented offense and the allowable
unit of prosecution for the offense of aggravated kidnapping relates to
the abduction of a victim. The jury may be instructed that it can
consider all of the aggravating factors alleged by the State and return
a general verdict of guilty for the single criminal count of aggravated
kidnapping. Gonzales v. State - 07-07-0302-CR.


Fernandez v. State - 6th COA

When two statutes cover different situations and were
apparently not meant to be considered together, the doctrine of in pari materia
does not apply. In this case involving an abandoned child, TPC §22.041(b) could
cover an unlimited set of facts where it is shown that a child has been
abandoned and mandates that the abandonment be under circumstances in which no
reasonable, similarly situated adult would leave a child. In contrast, TPC
§22.10 applies only to leaving a child in a vehicle and may be violated in a
few short minutes. Fernandez v. State - 06-08-00007-CR.

McClure v. State - 6th COA

The trial court did not commit error when, during the
punishment phase of the trial, it admitted the defendant’s custodial confession
to an officer about dealing drugs. CCP art. 37.07 does not require the State to
provide, nor the trial court to first hear, additional corroborating evidence
in order to make the extrajudicial confession to these extraneous offenses
admissible. McClure v. State - 06-08-00024-CR.


Landrian v. State

The trial court properly submitted a jury charge which
required the jury unanimously to agree that the defendant either intentionally
and knowingly caused bodily injury while using a deadly weapon or recklessly
caused serious bodily injury. The essence of the offense is "causing
bodily injury." The jury did not have to be unanimous on the aggravating
factors of whether it was a serious bodily injury or whether the appellant used
a deadly weapon. Landrian v. State - PD-1561-07.

Newman v. State - 7th COA

The sentences must run consecutively when the defendant was convicted of both possessing a controlled substance in a drug-free zone and engaging in organized criminal activity. While there was one criminal episode which resulted in joint prosecutions and convictions in the same trial, two conflicting sentencing statutes were implicated. The specific must trump the general and because the possession in a drug free zone (Health and Safety Code §481.134(h)) is the more specific offense based on the circumstances in the case, it's mandatory stacking requirement controls over the general rule found in Penal Code §3.03 and the sentences must run consecutively. Newman v. State -07-07-0276-CR.

Ford v. State - 6th COA

Tthe trial court was in error when during a pre-trial suppression hearing it admitted and
considered a police report which was unaccompanied by any form of affidavit or
sponsoring testimony. The trial court is permitted to make a pre-trial ruling based on the motion
itself, upon competing affidavits and/or based on live testimony. Here, the sole
basis to deny the motion was unsworn and unsupported evidence, and that was
error. Ford v.State - 6-08-00046-CR.

Huffman v. State - CCA

Charging the jury in the disjunctive with respect to various statutory
methods of committing the offense of failure to stop and render aid does not result in a
violation of the constitutional requirement of a unanimous jury verdict. The various statutory methods for committing the offense do not create
separate offenses. Failing to stop, failing to return, and failing to remain are
merely alternative methods of committing the same offense. Huffman v. State - PD-1539-07.

Vega v. State - CCA

The appellate court erred when it determined that evidence adduced at the
appellant's trial was factually insufficient to support his conviction for
capital murder under the law of parties. The jury could have convicted the appellant under TPC
or §7.02(b) even though the erroneous charge only applied the
law of parties under §702(a)(2). Vega v. State - PD-615-06.

Klein v. State - CCA

Tthe court of appeals erred in reversing the trial court for admitting the child
complainant's prior out-of-court statements to two outcry witnesses under Rule
of Evidence 801(e)(1)(B)
when the complainant gave conflicting trial
testimony about her father's abuse. The rule allows a party to rehabilitate a witness who, on
cross-examination, has been accused of recently fabricating or changing her
testimony for some improper reason. Klein v. State - PD-502-06.

Reasor v. State - 4th COA

Evidence of a civil claim in a landlord-tenant dispute did provide sufficient
evidence to revoke the defendant's probation when offered during the revocation
hearing. Evidence presented regarding the landlord-tenant dispute was enough to
allow the trier of fact to conclude that the defendant had also committed the
offense of criminal mischief. Proof of a single probation violation is
sufficient to support a revocation. Reasor v. State - 04-07-00442-CR.

Clarke v. State - CCA

The defendant successfully preserved a
Brady/Giglio claim when, although he did not explicitly raise it in a written
motion for new trial, he did make the argument at a hearing on his motion. A claim that the trial court erred in denying a motion for new trial is preserved
for appellate review if the nature of the ground allegedly warranting a new
trial is raised and litigated, without objection, at some point during the
motion-for-new-trial proceedings. Because the defendant only "enlarge[d]" his
claim at the hearing and the State did not object, the trial court had authority
to consider and rule on the defendant's Brady claim even though it was
not explicitly set out in the original motion for new trial. Clarke v. State -PD-1454-07.

Ortegon v. State - 7th COA

A criminal defendant may not subpoena the prosecutors who dismissed his previous
indictment to provide testimony in the defendant's present effort to quash his
re-indictment. Under the Texas Constitution, criminal defendants have the right to
compulsory process for obtaining witnesses. However, the right is not absolute. Ortegon v.State - 07-07-0159-CR.

State v. Chacon - 4th COA

The municipal court was correct when it determined that it did not have jurisdiction
over violations of a fine-only offense related to sexually oriented businesses. The ordinance contained an enforcement provision that directly conflicted with
the enforcement provision of a state statute. The city's enforcement provision
was preempted and therefore unenforceable under Local
Government Code §243.010(b)
. State v. Chacon - 04-07-0069-CR.

Langham v. State - 11th COA

The State proved that the defendant's connection with the drugs found in the home
where she lived was more than fortuitous. In the defendant's bedroom, officers found traces of a white powdery substance
under her bed and a safe with money to which only the defendant had access. A
set of electronic scales that the defendant indicated were related to her duties
as "cook" for the household, a razor and plate with the same powdery traces were
found in the kitchen. Any rational juror could have found beyond a reasonable
doubt that the defendant exercised control, management, or care over the
contraband and that she knew the substance was cocaine. Langham v. State - 11-07-00027-CR.

Hawkins v. State - 11th COA

The defendant's motion for a mistrial was not appropriate when a juror informed the court during the trial that he had learned for the
first time from trial testimony that evidence had been found behind his house. The juror was not a potential or actual witness in the case. He knew nothing
about the evidence until he heard it in court. Hearing this for the first time
at trial did not indicate that the juror had prejudicial knowledge about the
case. Hawkins v. State -11-06-00309-CR.

Towery v. State - 6th COA

Defendant's conviction for murder was proper when the trial judge inadvertently granted his motion for directed verdict of acquittal prior to receipt of the jury's verdict. There was no genuine instructed verdict because the order granting a directed verdict was the result of a clerical error. Actual events and proceedings as indicated in the transcript conclude that the trial court denied the motion. Towery v. State - 06-07-00122-CR.

Shepherd v. State - CCA

The seizure of contraband is constitutionally permissible under the emergency doctrine. Police entry into the defendant's house was justified by a call from a neighbor
that the defendant's front door had been left open even though his car was not
in his driveway. Officers then properly seized contraband in the house under the
plain view doctrine. Shepherd v. State - PD-1551-07.