As the Judges Saw It
March-April 2008

As the Judges Saw It

Tanya S. Dohoney

Assistant Criminal District Attorney in Tarrant County



State Appeal of Nunc Pro Tunc granting additional back-time credit


During a routine strip search in the Kaufman County Law Enforcement Center, officers discovered that Jeremy Paul Collins possessed a packet of crystal methamphetamine in his underwear. Plea negotiations on the drug case resulted in an agreement for Collins to serve five years. The plea terms included several other conditions; one called for Collins to receive 34 days’ credit for time already served. The plea documents and the judge’s oral pronouncements discussed this 34-day credit.
After Jeremy’s guilty plea, no motion for new trial or appeal followed. After the expiration of the trial court’s plenary authority, Collins filed a combination Writ of Habeas Corpus/ Motion for Judgment Nunc Pro Tunc. The trial judge subsequently granted Jeremy an additional 271 days’ credit for time served, and the State appealed the entry of the nunc pro tunc judgment.

Did the court of appeals have jurisdiction to hear this case and, if so, would a State’s appeal succeed?

Capital murder of mother and fetus


During the summer of 2004, Terence Chadwick Lawrence dated two women. Upon learning that one girlfriend was pregnant, he told the other one that he would “take care” of this problem. Thereafter, he shot Antwonyia Smith, his pregnant girlfriend, causing the death of Antwonyia and the four-to-six-week-old embryo she carried. Dallas County prosecuted Lawrence for capital murder by killing more than one person during the same criminal transaction. Changes to a statutory definition advanced this theory. The definition of “person” includes an “individual,” and the Texas Penal Code now defines “individual” under §1.07(a)(26) as “a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth.”

Is such a prosecution constitutional?

Submission of non-statutory defensive issues


John Arlin Walters shot and killed his brother in the Tabernacle Baptist Church parking lot in Hopkins County with a gun that he typically used to shoot snakes and other varmints. Long-term strife over things such as land, cattle, fences, taxes, and bills permeated the brothers’ relationship. On the day of the shooting, Walters’ brother, Russell, confronted him about an unpaid water bill. Attempting to extract himself from the festering argument, Walters jumped into his truck and began to drive away. Russell pursued on foot, continuing to joust verbally with his brother. Although Walters initially sped up, he stopped suddenly, got out of his truck, and shot Russell twice. Walters returned to his truck, drove next door to his house, and called 911 for help, ultimately turning himself in to authorities.
Walters suggested at trial that he had to defend himself, and the jury received instructions on self-defense and apparent danger. Walters also requested submission of language allowing the jury to consider Russell’s prior verbal threats in deciding the issue of self-defense based upon prior Court of Criminal Appeals’ decisions.

Was he entitled to this additional non-statutory instruction?

Rule of optional completeness


More about those Walters brothers: When John Walters shot his brother in the neighboring church parking lot and returned home to call 911, he generically reported that a man had been shot. Other emergency calls pointed to Walters as the possible perpetrator and, armed with this suspicion, the 911 operator called Walters back at his house a few minutes after his first 911 call. During their second conversation, the dispatcher secured Walters’ agreement to surrender peacefully. The officer also asked Walters if he wanted to talk about what happened. In response, Walters told the deputy that “my brother come over here threatening me, one of several times” and also that “he told me one time he was gonna kill me out there at the barn.”

At trial, the State asked the 911 operator about this second call to illustrate Walters’ incredibly calm demeanor but objected to any reference to his self-serving statements about his brother’s prior threats. Walters contended that the State’s limited proffer of the conversation violated the rule of optional completeness and also left a false impression with the jury that Walters failed to answer the deputy, was unnaturally calm after killing his brother, and was not forthcoming about killing his brother. Walters argued that the faulty impression undermined his constitutional right to present a defense.
Was this TRE 107 objection correct?

Hicks who have care, custody, and control


While a group of people partied in a country pasture during the wee hours of the morning, a 42-year-old mentally retarded man named Billy was rendered unconscious in a brief fight. Offering up a heaping dose of Cass County compassion, the partygoers stood around Billy’s unconscious body for over an hour debating whether medical or police officials should be consulted. Our hero, James Corey Hicks, protested police intervention for fear of losing his jailer job at the Cass County sheriff’s office. True to his name, Hicks maneuvered the group into dropping Billy along a country road outside of town. Hicks led the convoy to a remote location, left Billy there, returned to his home for a brief period, returned to the site, and finally called the sheriff’s office to give them Billy’s location. After a week-long hospital stay, Billy recovered from his sub-arachnoid hemorrhage and aspiration pneumonia.

A Cass County jury acquitted Hicks of two counts including intentional/ knowing injury to a disabled person but convicted him of injury to a disabled individual by omission. Although the jury arrived at a three-year sentence, the judge probated Hicks.

Texas Penal Code §22.04(d) imposes a duty of care on those who have assumed care, custody, or control of children or elderly or disabled individuals. Does this provision equate with the PC §1.07 definition of “possession,” which also includes the terms care, custody, or control?

How-to for submission of Article 38.23 instructions


Ryan William Madden drove lickety-split through a construction zone while following an also-speeding cohort in an SUV. Trooper Lily of Harris County noticed the two speeding vehicles, their drug-convoy driving conduct, and their Florida license plates. The trooper managed to pull them both over. Madden’s explanation of his solo trip, distinctively described route, and his four-day-overdue Florida rental car did not mesh with the SUV driver’s story about traveling in a group; also, Madden’s verbalized arrest history differed from what dispatch unearthed. Due to these contradictions and what the officer described as Madden’s uncontrollable shaking, Trooper Lily called for a K-9 unit. The dog arrived 15 minutes later and alerted on cocaine bricks in Madden’s trunk.

The trooper’s in-car camera recorded this episode and captured Madden’s claim that he was driving with his cruise control set on 55 miles per hour. The tape’s poor quality did not show Madden’s nervousness with clarity. Defense counsel vigorously cross-examined Trooper Lily, seriously questioning the existence of Madden’s “nervous” behavior, but the officer held fast to his original description and surmised that the tape’s quality contributed to any inability to see the nervousness.
Madden requested two CCP article 38.23 instructions, one applying the exclusionary rule to the facts of the stop and another focusing on the legitimacy of the continued detention. What article 38.23 instructions, if any, were raised?

Intentional ineffective assistance of counsel


While representing Darrell Dewayne Cannon on a DWI arising out of a single-car collision in Collin County, defense attorney Chris Hoover showed up on the morning of trial with a written motion to recuse and also urged an oral motion for continuance. The recusal alleged judicial bias based upon events from a prior trial where the judge purportedly “personally attacked” Hoover; counsel claimed to be in the midst of drafting a judicial complaint. The alleged need for a defense expert underpinned the requested continuance.

After a denial of both the recusal motion and his subsequent request to have it heard before a neutral jurist, Hoover announced he was not ready for trial and that the court’s rulings jeopardized his ability to provide effective assistance. Hoover declared that he would “not participate” in the trial. The trial continued with Hoover declining to participate in jury selection, arraignment, opening, and evidentiary matters such as objecting or cross-examining. No defense witnesses were proffered.

After the State rested and closed, Hoover presented a written motion for continuance which detailed his need for an expert on how the airbag’s impact affected Cannon; no ruling was obtained. Hoover also unsuccessfully pressed a detailed oral motion for an instructed verdict pointing out an alleged defect in the State’s proof. At that juncture, the trial judge afforded defense counsel the opportunity to recall each witness and examine them; Hoover declined. Hoover likewise refused to present oral argument, again claiming a lack of readiness. Fifteen minutes of deliberation lead to a guilty verdict. Finding no jury election in the file, the trial judge ultimately sentenced Cannon.

Does Cannon’s claim of a denial of his Sixth Amendment right to effective assistance succeed?

6th Amendment violation vs. harm analysis


After Janet Lorraine Williams threatened to assault her child’s elementary-school teacher, Brazoria County prosecutors charged her with terroristic threat. She pled not guilty and appeared for trial without representation. When she told the judge that she wanted to act as her own counsel, the court briefly discussed this choice with her. However, during the judge’s admonishments, he never said that she was entitled to an attorney if indigent, nor did he make any indigency inquiry. Despite these inadequate admonishments, Williams represented herself, was convicted, and appealed.

Was this error subject to a harm analysis?

Jeopardy and multiple homicide convictions per victim


While driving home from a trip with his 8-year-old son in their heavily loaded SUV, Edwin Glen Bigon erratically drove for some distance, ultimately crossing the middle lane of traffic as he crested a hill and rounded a corner in Lampasas County. He slammed his SUV head-on into a vehicle driven by a woman, instantly killing her and her infant daughter. Blood samples taken at the hospital led to Bigon’s indictment on two counts of felony murder (DWI with a child was the underlying felony), two counts of intoxication manslaughter, and two counts of manslaughter.

After a one-day bench trial, the trial judge convicted Bigon on all six counts and sentenced him to 18 years’ confinement on each, set to run concurrently. On appeal, Bigon raised several complaints but none pertaining to double jeopardy.

Was there a jeopardy issue and, if so, what should be the result?

Recorded police narratives


When Trooper Martinez approached John Robert Fischer’s car window after stopping him for a seatbelt violation early one morning, the officer noticed the smell of alcohol, converting the traffic stop into a DWI investigation. As the investigation proceeded, the officer repeatedly removed himself from Fischer’s immediate presence to dictate the details of his observations, including FST results, into his body microphone.

At trial, Fischer moved to suppress the audio portion of the in-car videotape, objecting that these contemporaneously dictated statements constituted bolstering, self-serving statements of the officer’s observations. The trial court ruled that the audio did not qualify as a present sense impression due to its calculated character, calling it the functional equivalent of a police offense report. See Tex. R. Evid. 803(1). Was the audio admissible?



CCP article 44.01(a)(1) authorizes a State appeal from an order that modifies the judgment, and article 42.01, §1(18) lists “credit for time served” as part of a judgment, so jurisdiction existed. Hence, the State may appeal an order that modifies the amount of back-time received by a defendant via a judgment nunc pro tunc.

On the merits, the trial court erred in awarding the additional back-time because the terms of the plea bargain controlled. Under CCP article 1.14(a), a defendant may waive almost any right, including the right to pre-sentence back-time, by entering into a plea agreement. The extant plea bargain undermined Collins’ claim to the pre-sentence credit. When the judge approved the plea agreement, he became bound to award the agreed amount of credit. No miscalculation or clerical error occurred that needed to be corrected and, therefore, the trial court erroneously entered the nunc pro tunc order. Collins v. State, PD-1203-06, ___ S.W.3d ___, 2007 WL 4146547 (Tex.Crim.App. November 21, 2007) (8:1) (Meyers).


Yes. The court upheld the conviction, dismissing Lawrence’s claims of vagueness, failure to confer notice, and due-process violations. As for vagueness, because the plain language of the statute prohibits killing any unborn human, regardless of age, the wording leaves no ambiguity. As for notice requirements, the indictment’s tracking of the statutory language conveyed adequate notice. Finally, on the substantive due process contention, the court disregarded the defense arguments that the instant prosecution ran afoul of Roe v. Wade jurisprudence because the Roe framework presupposes that the mother has chosen to abort the fetus; here, the State prosecuted a third party for ending the embryo’s life by fatally shooting the mother. The compelling state interest test has no application to a statute that prohibits a third party from causing the death of a woman’s unborn child against her will. Lawrence v. State, PD-0236-07, ___ S.W.3d ___, 2007 WL 4146386 (Tex.Crim.App. November 21, 2007) (6:3:0) (Keller).


No. The trial judge correctly denied submission of the requested non-statutory jury instructions on prior verbal threats. Trial courts must instruct the jury on statutory defenses, affirmative defenses, and justifications whenever they are raised. Appellate decisions after the 1974 Penal Code was written slowly recognized that non-statutory defense instructions ran counter to the legislature’s intent if the charge merely negated an element and was already sufficiently embraced in submitted language. Since then, appellate holdings have denied instructions on accident, good faith, alternative cause, independent impulse, suicide, and alibi. Judge Cochran opines that special instructions not expressly based on statute have no place in a jury charge, even though the instructions related to a statutory defense. Indeed, the court’s charge already authorized consideration of the prior verbal threats because the trial judge included instructions on “apparent danger” and “reasonable belief.” Present verbal provocation, by itself, is insufficient to support self-defense, yet the statute does not limit the relevance of prior verbal threats as they may affect a person’s reasonable belief that defensive action may be immediately necessary to protect against the decedent’s use of present unlawful force.

Here’s the general test. Neither the State nor the defense is entitled to a special jury instruction relating to a statutory offense or defense if that instruction 1) is not grounded in the Penal Code, 2) is covered by the general charge to the jury, and 3) focuses the jury’s attention on a specific type of evidence that may support an element of an offense or defense (because it would constitute an improper comment on the weight of the evidence). Walters v. State, PD-1952-06, ___ S.W.3d ___, 2007 WL 4245387 (Tex.Crim.App. December 5, 2007) (8:0) (Cochran).


Yes. TRE 107 required the introduction of otherwise inadmissible evidence—Walters’ self-serving hearsay statements to the 911 operator—when the State introduced the recording of the first 911 call and testimony about the second call. Rule 107 authorizes admission of evidence to fully and fairly explain a matter “opened up” by an adverse party to prevent the jury’s receiving a false impression from hearing only part of an act, conversation, or writing. TRE 403’s balancing test still limits Rule 107.

While holding that the trial court abused its discretion in excluding evidence of Walters’ response to the operator’s question, the court determined that only a non-constitutional harm analysis should be applied on remand. Generally, the erroneous exclusion of evidence constitutes non-constitutional error except when the exclusion precludes the presentation of a vital portion of the defense case. Here, because the evidence already revealed the brothers’ long-standing ill-will, the error did not impact Walters’ constitutional right to present a defense. Walters v. State, PD-1952-06, ___ S.W.3d ___, 2007 WL 4245387 (Tex.Crim.App. December 5, 2007) (8:0) (Cochran).


Nope. Penal Code §22.04(d)’s general duty of care is statutorily limited to those who “by act, words, or course of conduct acted so as to cause a reasonable person to conclude that he has accepted responsibility for protection, food, shelter, and medical care.” When considering sufficiency issues on appeal, the Texarkana appellate court analogized this statutory duty to Penal Code §1.07(a)(39)’s “possession,” which likewise includes the terms “care, custody, and control.” Judge Keasler humorously points out that this analysis presents the Logic 101 fallacy of the undistributed middle [I am a mammal, a dog is a mammal; therefore, I am a dog]. Because the Texarkana court improperly interpreted and broadened the statute in question, remand for reconsideration of the sufficiency claims without grafting the possession definition onto the duty-of-care provision was ordered. Hicks v. State, PD-0154-06, ___ S.W.3d ___, 2007 WL 4322001 (Tex.Crim.App. December 12, 2007) (8:1:0) (Keasler).


The record warranted one article 38.23 instruction because Madden’s driving speed was the only affirmative factual dispute relevant to legally obtaining evidence.

Setting out a useful framework, Judge Cochran explains that fulfilment of three elements entitles a defendant to an article 38.23 instruction: 1) evidence before the jury 2) must affirmatively raise a fact issue 3) which is material to the lawfulness of the challenged conduct. Here, Madden’s State-played, tape-recorded comment about driving 55 miles an hour conflicted with the trooper’s assertion that Madden was speeding and, of course, speeding was the basis for the stop. Judge Cochran praises the trial judge’s article 38.23 instruction applying this conflict to the concept of reasonable suspicion and sets the exemplary charge out in a footnote.

Although a factual dispute existed on the speeding issue warranting one prophylactic instruction, the evidence did not conflict on the continued-detention issue because no affirmative evidence questioned the factual basis for continuing the stop. Vigorous cross-examination (here, of the officer) cannot place facts in dispute unless the witness concedes a fact—only the answers, not the questions, are evidence. Madden attacked the trooper repeatedly about the nervous behavior he reported, strongly insinuating that the video showed a lack of nervousness. The trooper’s firm responses and poor-video-quality explanation did not result in an affirmative factual dispute. Although the video was not preserved for the record, Judge Cochran deferred to the trial court’s determination that it did not confute any fact. Also, the judge noted that the video’s contents would mandate an instruction only if it affirmatively challenged another fact.

Other reasons for denying the second 38.23 instruction existed. First, multiple observations supported the continued detention, and Madden only contested one: the existence of his nervous conduct. Additionally, Madden submitted an erroneously worded instruction (also quoted in the opinion) which failed to set out any specific historical fact, merely focusing on the law. Had consideration of this mistakenly worded instruction been somehow necessitated, it would have simply shifted the standard of review to that of unpreserved charge error. Madden v. State, PD-1243-05, ___ S.W.3d ___, 2007 WL 4404270 (Tex.Crim.App. December 19, 2007) (9:0) (Cochran).

Note: This thorough opinion is a veritable how-to guide for submission of article 38.23 instructions and should be placed in everyone’s trial notebook.


Yes. The Sixth Amendment right to counsel means more than simply having a warm-bodied attorney present; it includes the effective assistance of a lawyer. Hoover’s boycott of the proceedings constituted an abandonment of his role as defense advocate, obliterating the necessary crucible of meaningful adversarial testing. On these facts and in line with U.S. v. Chronic, 466 U.S. 648, 104 S.Ct. 2039 (1984), another case where the adversarial process was completely upended, prejudice from this wholly deficient representation was presumed and reversal required.

The record does not include information about Hoover’s trial strategy or motivation, nor does it indicate whether Cannon directed, agreed with, or acquiesced with his attorney’s conduct. Cognizant of a concern regarding Hoover’s motivation, Judge Holcomb chose to accept the attorney’s statements regarding lack of readiness as true, especially in light of the criminal defendant’s silence on the issue. A different outcome might have been achieved, though. Trial judges may attempt to mitigate the threat of attorney non-participation by ascertaining whether the defendant understands the implications and consequences of his lawyer’s conduct and whether the defendant is knowingly, intelligently, and voluntarily waiving the right to effective assistance of counsel.

Although retrial appears to be in Cannon’s future, the court remanded the case back to the Dallas COA to consider an unresolved cross-point from the State first. As for Hoover’s expectations, Judge Holcomb ordered that the opinion be forwarded to the Office of the Chief Disciplinary Counsel for the State Bar to take any appropriate action. Cannon v. State, PD-1084-05, ___ S.W.3d ___, 2008 WL 141902 (Tex.Crim.App. January 16, 2008) (5:4) (Holcomb) (Note that the original October 17, 2007 opinion was vacated).


No. Automatic reversible error occurred. A complete denial of the constitutional right to trial counsel is a structural defect that affects the framework of a trial and, hence, is not subject to a harm analysis. Here, Williams was denied her right to trial counsel because the trial court’s admonishments regarding self-representation did not obtain a valid waiver of her right to counsel. Without a valid waiver, her right to counsel remained intact and, therefore, her self-representation breached her right to counsel. Williams’ failure to request counsel was irrelevant because a defendant cannot be expected to assert a right for which she had received no admonishment. The trial court’s insufficient Faretta warnings resulted in automatic reversal without resort to any harm analysis. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525 (1975). Williams v. State, PD-1245-06, ___ S.W.3d ___, 2008 WL 141910 (Tex.Crim.App. January 16, 2008) (8:0) (Keasler).


Jeopardy prevented convictions for felony murder at the same time as the remaining counts (intoxication manslaughter and manslaughter) even though the issue was not raised nor briefed on appeal. The Court of Criminal Appeals previously found a multiple-punishment violation when reviewing convictions for intoxication manslaughter and manslaughter arising from the same victim’s death. Ex parte Ervin, 991 S.W.2d 804 (Tex.Crim.App. 1999). The court, therefore, turned to consideration of whether felony murder under these facts and intoxication manslaughter also constituted the same offense for jeopardy purposes. Finding that they do, Judge Meyers recognized that the two offenses were not the same under a straight Blockburger analysis based upon their statutory construction. See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180 (1932). Yet Ervin set out a list of nonexclusive, post-Blockburger-test considerations for further determining whether two offenses are “the same.” Those factors include the provisions’ focus, location, name, and legislative history, among others, with a goal of discerning whether the legislature sought to allow the same conduct to be punished under both provisions. Based upon intoxication manslaughter’s historic consideration as a type of homicide, the sameness of the focus of both provisions, and the fact that the underlying felony was DWI with a child, the court reasoned that the legislature did not intend to impose multiple punishments for felony murder based on an underlying felony DWI and also intoxication manslaughter.

Finding a jeopardy violation, the court utilized the most-serious-offense test and left only the two felony murder convictions intact. Bigon v. State, PD-1769-06, ___ S.W.3d ___, 2008 WL 141929 (Tex.Crim.App. January 16, 2008) (8:1) (Meyers).

Presiding Judge Keller dissented. While agreeing with the jeopardy aspect of the majority decision, she parted ways on the result, differing with the majority’s application of the most-serious-offense test. She noted that in more complex cases where the sentences do not differ, considerations of factors such as effect of an affirmative finding on parole or future enhancement potential require a subjective analysis that should fall to the prosecution’s discretion, not the court’s. She would have remanded the case to the trial court to give the prosecution a voice in deciding which convictions should be retained. She also believed that the court’s prior decisions rejected the degree-of-felony analysis used by the majority.


No. The officer’s factual observations, contemporaneously dictated in a calculated fashion on his patrol-car video, were inadmissible as present sense impressions because they were not unreflective statements, unaided by retrospective mental processes. While police officers can utter spontaneous, unreflective present-sense-impression comments that qualify for admission under TRE 803(1), the instant narration revealed that the officer was making conscious “thinking-it-through” assertions while he was engaged in the enterprise of ferreting out crime. Judge Cochran explicated that “calculation and criminal litigation shimmered in the air” and analogized to the anticipation-of-litigation basis for TRE 803(8)(B)’s exclusion of police reports. Nevertheless, an officer may testify to sights and sounds seen and heard during an investigative detention when they are spontaneous, unreflective, and contemporaneous. The court also remarked favorably on law enforcement’s use of in-car audio/video equipment. Fischer v. State, PD-0043-07, ___ S.W.3d ___, 2008 WL 141850 (Tex.Crim.App. January 16, 2008) (5:4) (Cochran).

Judge Hervey’s dissent suggests that, while the majority did not expressly hold that Rule 803(8)(B) trumps Rule 803(1), that was its result. The dissent would have analyzed the substantial contemporaneity of the statements in addition to their spontaneity. Judge Hervey also noted that Fischer’s recorded statements about his alcohol consumption were not excluded by the majority’s decision.