July-August 2015

A compendium of bite-size legal tips

Melissa Hervey

Assistant District ­Attorney in ­Harris ­County

Shock probation is not a final conviction for enhancement purposes unless revoked
In the case of shock probation, the defendant is convicted of the charged crime, punishment is assessed, and his sentence begins to be executed; however, when the trial court places the defendant on shock probation, execution of the defendant’s sentence is suspended. Accordingly, because further execution of the sentence is suspended, the conviction is not considered final for purposes of enhancement—just like with regular probation—unless and until the defendant’s probation is revoked.1

No regular probation, no shock probation either
A defendant who is ineligible for regular community supervision under Article 42.12, §§3 or 4 is also ineligible for shock community supervision under Article 42.12, §6.2

Consent to search
How consent may be demonstrated: A person’s consent to search can be either express or implied, and it may be communicated to law enforcement in a variety of ways, including by words, actions, or by circumstantial evidence demonstrating that consent is implied—e.g., movements or gestures that convey implicit consent.3
Burden of proof: While federal law requires the government to establish that consent was voluntary by only a preponderance of the evidence, Texas law is well-settled that the State must prove the voluntariness of consent by clear and convincing evidence.4 Whether consent was voluntary is a fact question that the trial court can resolve only after analyzing the totality of the facts and circumstances of the particular situation.5

Same-transaction, contextual extraneous-offense evidence

Evidence of the defendant’s extraneous offenses is not admissible at the guilt phase of a trial to prove that a defendant committed the charged crime in conformity with a bad character.6 However, extraneous offense evidence may be admissible when it has relevance apart from demonstrating bad-character conformity.7 For example, extraneous-offense evidence may be admissible to show the defendant’s motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.8 Similarly, extraneous-offense evidence may be admissible to rebut a defensive theory at trial, such as self-defense or a claim that the State’s witnesses are lying.9
    Evidence of another crime, wrong, or act also may be admissible as same-transaction contextual evidence where “several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony … of any one of them cannot be given without showing the others.”10 “The jury is entitled to know all relevant surrounding facts and circumstances of the charged offense,” and same-transaction, contextual evidence can be essential to illuminate the nature, context, and circumstances of the charged crime.11
    However, it is important to remember that, under Rule 404(b), same-transaction contextual evidence is admissible only when the charged offense would make little or no sense without also bringing in the evidence of the extraneous offenses, and it is admissible only to the extent that it is necessary to aid the jury’s understanding of the charged offense.12


1 Ex parte Langley, 833 S.W.2d 141, 143 (Tex. Crim. App. 1992); see Ex parte White, 211 S.W.3d 316, 319 (Tex. Crim. App. 2007) (“As we have long held, ‘[i]t is well-settled that a probated sentence is not a final conviction for enhancement purposes unless it is revoked’”) (quoting Langley, 833 S.W.2d at 143).
2 See Tex. Code Crim. Proc. Art. 42.12, §6(a) (a trial court may, within 180 days of the date that the execution of the sentence actually begins, place the defendant on shock community supervision if the judge determines that the defendant would not benefit from further incarceration, “the defendant is otherwise eligible for community supervision under this article,” and the defendant has never been incarcerated in prison for a felony sentence); State v. Dunbar, 297 S.W.3d 777, 780 (Tex. Crim. App. 2009).
3 Meekins v. State, 340 S.W.3d 454, 470 (Tex. Crim. App. 2011); see Valtierra v. State, 310 S.W.3d 442, 451–52 (Tex. Crim. App. 2010) (consent to enter defendant’s apartment and speak with a suspected runaway in bathroom was sufficient, when combined with other facts, to support voluntary implied consent to walk down the apartment hallway); Johnson v. State, 226 S.W.3d 439, 440–41 (Tex. Crim. App. 2007) (calling 911 and asking for police assistance constituted implied consent for police to enter defendant’s home and investigate a homicide); Gallups v. State, 151 S.W.3d 196, 201 (Tex. Crim. App. 2004) (defendant’s hand gesture made towards officer was sufficient to convey consent for the officer to enter defendant’s home); Thomas v. State, 297 S.W.3d 458, 463-64 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d) (defendant voluntarily consented to the search of his pockets when he put his hands up, pushed his hip towards the officer, and “invit[ed] her to ‘look.’”); Kendrick v. State, 93 S.W.3d 230, 234 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (defendant consented to a pat-down search when he stood up and raised his hands); Simpson v. State, 29 S.W.3d 324, 329 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (defendant consented to the search of his car when he nodded his head affirmatively, despite his subsequent testimony that he did not give consent).
4 Meekins v. State, 340 S.W.3d 454, 459 (Tex. Crim. App. 2011); State v. Ibarra, 953 S.W.2d 242, 245 (Tex. Crim. App. 1997).
5 Id. at 459-60.
6 Tex. R. Evid. 404(b); Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011); see Nobles v. State, 843 S.W.2d 503, 514 (Tex. Crim. App.1992).
7 Devoe, 354 S.W.3d at 469; Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003).
8 Tex. R. Evid. 404(b).
9 Williams v. State, 301 S.W.3d 675, 686-87 (Tex. Crim. App. 2009); De La Paz v. State, 279 S.W.3d 336, 345-47 (Tex. Crim. App. 2009).
10 Devoe, 354 S.W.3d at 469 (quoting Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000).
11 Devoe, 354 S.W.3d at 469; Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993); Quincy v. State, 304 S.W.3d 489, 502 (Tex. App.—Amarillo 2009, no pet.).
12 Devoe, 354 S.W.3d at 469; Pondexter v. State, 942 S.W.2d 577, 584 (Tex. Crim. App.1996).