July-August 2007

As the Judges Saw It

Tanya S. Dohoney

Assistant Criminal District Attorney in Tarrant County



Vincent Henry Flowers has multiple metroplex DWIs. After being nabbed by a Denton County officer, he was charged with misdemeanor DWI-repetition enhanced by a 1995 Dallas prior. Pretrial, the Denton prosecutor sought the certified Dallas judgment and other corresponding documents for proof. However, the Dallas County clerk responded with bad news: The file was “missing” from its off-site warehouse facility. Instead, the clerk forwarded a certified computer printout of Flowers’ conviction record. This exhibit, admitted at trial over defense objection, contained Flowers’ name, birth date, address, Social Security number, date of arrest, charged offense, finding of guilt, sentence, and the judicial case identification number. There was no fingerprint.

The prosecution also relied upon an exhibit obtained from the Texas Department of Public Safety. This six-page record included Flowers’ name, sex, date of birth, age, address, driver’s license number, a copy of his license with his photo, and a reference to a Dallas County DWI conviction on 8-18-95 with an offense date of 08-02-95, and that case’s cause number.

When admitting these exhibits, a Denton investigator described the Dallas document as Flowers’ conviction record; he also explained how the two exhibits’ information matched, including the personal identifiers. The defense objected to the computer-generated Dallas County record on relevancy grounds and its lack of a fingerprint; Flowers also objected to proving a prior without a judgment of conviction.

The Fort Worth Court of Appeals found the certified documents from Dallas constituted the functional equivalent of a judgment and sentence and found sufficient evidence to support beyond-a-reasonable-doubt proof of the prior and its link to Flowers; they upheld the enhanced sentence. Correct?


Donnie Lee Roberts lived with Vicki Bowen. While Vicki worked as a dental assistant, Donnie Lee’s pastimes included drinking and abusing cocaine. Roberts shot Vicki in the head twice when she refused his demand for money.

On direct appeal from his capital conviction, Roberts raised two complaints involving the punishment testimony of a woman he had robbed three years before Vicki’s capital murder. Elizabeth Thomas testified about Roberts robbing her while she worked in Louisiana. She described the emotional toll the robbery took on her life, including having to quit her job due to her continued fear that each customer would rob and kill her. She also suffered from sleep deprivation and nightmares, and she ran out of savings while trying to find another job.

Was this extraneous offense victim impact evidence admissible in light of the court’s prior holding in Cantu v. State, 939 S.W.2d 627, 637-38 (Tex. Crim. App. 1997), where the court ruled inadmissible the extraneous victim’s mother’s testimony describing her daughter and the crime’s impact on the victim’s family?


Trooper Fountain of Montgomery County clocked Justin Amador for speeding. As the trooper concluded the purpose of the stop and handed Amador a warning for speeding, she noticed alcohol on the driver’s breath. A DWI investigation and arrest ensued. Everything was videotaped.

Amador later disputed the officer’s legal authority in a suppression hearing. In that proceeding, Amador played portions of the trooper’s in-car video for the judge. Defense counsel declined having the court reporter take down the videotaped commentary, saying that the words spoken on the tape sufficed. Subsequently, Amador failed to enter the video into evidence; the camera had recorded information germane to the disputed legal issue. The trial court ultimately denied suppression.

When Amador filed his appellate documents, he did not designate the videotape be included in the record. Indeed, later, he successfully objected to the State’s request to supplement the record with the exhibit. In its affirmance, the Beaumont Court of Appeals concluded that the missing video supported the trial court’s implicit finding regarding the propriety of the trooper’s actions. The court also noted that Amador had hoisted himself on his own petard by not introducing the exhibit and later thwarting supplementation. On discretionary review, Amador questioned the lower court’s consideration of the videotape that was not part of the appellate record. How did the lower court’s decision fare?


James Thomas LaPoint victimized his estranged wife in various ways and, for his actions, he faced prosecution for multiple violent crimes. During his trial, he sought to cross-examine his victim regarding her prior sexual history to purportedly explore a bias and motive for testifying. The proposed questions involved things like sex with multiple partners and her affinity for sex toys. Under Rule 412, the Williamson County district judge addressed the admissibility of these questions in camera—only the judge and victim were present. The court declined the defense request to participate but offered to ask any questions that the defense submitted. A request to be allowed to make a bill of exception via direct questioning was also declined. Later, the defense sought to ask similar sex-related questions of a nurse who examined the victim, too. The trial judge repeated his in camera consideration of these questions.

On appeal, the defendant complained of a Rule 412 violation and confrontation error. The Austin Court of Appeals concluded that the trial court’s errors prevented the development of a record that allowed a determination of harmlessness; they reversed, ordering a new trial.

After the State filed a PDR, the Austin court withdrew its opinion and abated the cause for a retrospective in camera hearing that permitted the presence of the parties and the questioning of the witnesses. During the abatement hearing, the trial judge granted defense counsel wide latitude when examining the victim and nurse. Once the appeal was reinstated, the Third Court held that the trial court’s error had been cured by the retrospective in camera hearing. Both parties sought discretionary review. Does the rape shield law embodied in Rule 412 of the Texas Rules of Evidence require an adversarial proceeding?


Charles Gonzalez and his juvenile buddy, Adam, sauntered into the Good Times Store in El Paso; however, a good time was not had. After Gonzalez grabbed cash from the clerk, Adams fatally shot the employee in the chest. The store’s video camera captured the crime’s details and, to apprehend the villains, El Paso TV stations repeatedly played the video on the news.

Pretrial, Gonzalez requested a change of venue based upon this pretrial publicity. The trial court heard testimony describing abnormally heavy coverage that included repeated telecasts of the video but withheld a ruling until after voir dire. Jury selection revealed that two-thirds of the panelists recalled seeing the coverage and one-third of the venire harbored unalterable opinions about the case. Although the trial judge refused to order a change in venue, the El Paso Court of Appeals reversed. Was the appellate court’s determination that the local news’ repeated broadcasts of the surveillance video undermined the fairness of the trial?


Code of Criminal Procedure Article 37.09(1) authorizes submission of a lesser offense where that crime is established by proof of the same or less than all the facts required to establish the commission of the charged offense. Applying this language, was aggravated assault by threat a lesser-included offense of murder where Aaron Junior Hall’s indictment alleged that he inflicted the victim’s death by shooting him with a gun while harboring either the intent to cause death or serious bodily injury while committing an act clearly dangerous to life?


In this Tarrant County case, Gustavo Rodriguez appealed his adverse suppression determination claiming that the search warrant affidavit used to discover 42 kilos of cocaine in his garage lacked probable cause. The affidavit revealed that experienced narcotics’ officers received a tip that Rodriguez’ uncle, Cantu, dealt in significant quantities of cocaine. A team of officers began surveillance of Cantu and followed him to Rodriguez’s Goddard Street residence. At the home, Cantu pulled up next to a detached garage/shed in back of the house. Shortly thereafter, Cantu left the building carrying a package in his right hand; he nervously looked about the area and threw the item into his car’s backseat. Cantu drove off only to commit a traffic violation down the road. After Cantu consented to a vehicle search, officers discovered a brown bag containing three brick-like objects which appeared to be cocaine. Although Cantu told the officers that the three cocaine kilos came from the Goddard Street garage where more than 10 kilos remained, these juicy, salient facts did not ultimately make it into the hurriedly-drafted search warrant affidavit.

After the officers at the site of Cantu’s stop and arrest put the wheels in motion for the search warrant, they informed those still surveilling the Goddard Street house of their backseat discovery, too. When the officers still at Rodriguez’s house heard metal-on-metal banging, they secured the premises until the search warrant was obtained. The huge cache of cocaine was ultimately seized.

On appeal to the Fort Worth court, the appellant prevailed; the court held that the facts in the affidavit may have given rise to suspicion, but they did not provide a “substantial basis” for concluding that the search would uncover evidence of wrongdoing. Did this ruling stand on PDR?


After dating Antonio Schmidt for several years, the unnamed victim had apparently reported information about Schmidt’s questionable actions in another county to the authorities. Subsequently, one morning, Schmidt yelled and cursed at the victim using a term rhyming with “witch,” grabbed her, pushed her off a porch swing, continued to kick her in the back and stomach, dragged her by the hair, and punched her in the face—all while keeping the phone from her—until she ultimately retreated to a locked bathroom for safety.

Convicted of retaliation, Schmidt’s appeal to the Amarillo Court of Appeals amazingly raised a sufficiency complaint. Schmidt’s specific argument focused on the indictment language that alleged he had “threatened to harm the victim by striking her in retaliation for or on account of her services as a prospective witness.” Based upon the language pled and the evidence, Schmidt contended that, although the evidence proved that he harmed her, insufficient evidence showed that he had “threatened to harm” his girlfriend. The Amarillo court bit and rendered a judgment of acquittal. What says the reader?


When the trial court convened the venire to begin jury selection for Robert Gray’s intoxication manslaughter and aggravated assault trial, the judge made some introductory remarks and mentioned that, during lunchtime, he would hear from panelists who desired to “plead economic excuses.” Venireman number two responded to this invitation and explained that, as his family’s sole breadwinner working for commissions as an auto parts salesman, he would be plunged into financial hardship by jury service. The trial judge excused the man. Gray’s attorney said that they probably had “more than enough” jurors, but he still objected to the excusal.

On appeal, the Corpus court held that excusing the venireman’s for an economic reason violated Texas Gov’t Code §62.110(c) and, because it is structural error, reversal was necessary. On discretionary review, the Court of Criminal Appeals reversed and remanded so that the court could instead partake of a non-constitutional harm analysis. On remand, however, the Corpus court relied on Ford v. State, 73 S.W.3d 923 (Tex.Crim.App. 2002) (plurality op.) for the proposition that appellate courts should determine the right sought to be protected when considering harm for a statutory violation. Finding that Gov’t Code §62.110(c) protects the constitutional right to a fair cross-section of the community, the lower court decided that it could not state with fair assurance that the error was harmless and again reversed the conviction. Was this the proper error analysis?


This anomalous case involved Article 21.25 of the Code of Criminal Procedure. When the Denton County grand jury returns an indictment, four “duplicate original” indictments are produced and distributed to the court, the clerk, and the parties. In 1994, the Denton County grand jury indicted Larry Don Dotson on two involuntary manslaughter cases. The pleadings were identical except for the victims’ names (Tracy and Natalie). Dotson pled guilty to both charges and received 10 years’ probation in each. With less than a year left on his suspended sentences, the State sought to revoke him and, at that juncture, found that the two indictments filed with the clerk’s office inexplicably bore the name of the same victim: Tracy.

Relying on Article 21.25, which authorizes substitution for an indictment which has been lost, mislaid, mutilated, or obliterated, the State sought to substitute a copy of the indictment naming Natalie for one of the indictments naming Tracy. The State produced testimony regarding the Denton County indictment procedure and hypothesized that a clerical error resulted in the two identical indictments winding up in both files, although the later cause number should have been Natalie’s case. Additional evidence revealed that all parties involved in the earlier stages of the prosecution, even defense counsel, understood that Dotson faced two separate charges. Also, the copy the State sought to substitute possessed an original handwritten cause number and file stamp. Based upon all of this evidence, the trial court agreed that a clerical error took place and permitted the Article 21.25 substitution. The Fort Worth Court of Appeals found the substitution problematic, however, because no evidence showed the original had been lost, mislaid, mutilated, or obliterated. They reversed on jeopardy grounds, vacating the second involuntary manslaughter conviction. Right or wrong?


1 No windfall warranted by warehouse error; Fort Worth got it right—although, semantic-wise, the functional-equivalent language was discounted.

Neither Texas caselaw nor Article 37.07 of the Code of Criminal Procedure requires a specific document or mode of proof to show the existence of a prior conviction or its link to a particular defendant. In fact, no document is necessary (nor is any “real” judgment). For example, a prior’s proof may be premised upon a defendant’s admission, stipulation, or even testimony from a person present at conviction who can make an identification. Judge Cochran aptly notes that, just as there is more than one way to skin a cat, there is more than one way to prove a prior conviction.

Because the substantive law does not require a particular means of proof, defendants are not entitled to a windfall when records are destroyed—a good thing in light of the recent devastation wrought by hurricanes on our Texas coast. Also, there may come a day when paper judgments are obsolete because some courts are going paperless. Rule 902 of the Rules of Evidence authorizes self-authentication of certified copies of public records including date compilations in any form certified as correct. This rule authorized admission of the records of Flowers’ case sent by the Dallas County clerk. Relying on a practical prior decision from 1988, Judge Cochran reiterated that proving a prior offense can be akin to assembling puzzle pieces: Alone they may have little meaning, but when the factfinder fits the pieces together and weighs the credibility of each piece, the evidentiary puzzle pieces establish the existence of the prior and its link to the perpetrator, too. Thus, the evidence supported the trial judge’s finding.

Judge Johnson concurred with a caution about prudent consideration of changes from non-traditional resources. Flowers v. State, No. PD-1081-06, ___ S.W.3d ___, 2007 WL 1135622 (Tex. Crim. App. April 18, 2007) (6:2).

2 Yes.

The court defines “victim impact” evidence as testimony regarding the effect an offense has on people other than the victim and distinguished it from Thomas’ testimony about the extraneous robbery’s impact. Her testimony presented evidence of the effect that a different offense had on the victim of that extraneous crime. In Cantu, the defendant engaged in a gang rape and murder of two young girls. Cantu was charged with the capital murder of one of the girls, and his appellate error arose when the mother of the other murdered girl described the murder’s effect on those who remained alive after Cantu’s brutal crime. Judges Meyers, Price, and Johnson dissented to the admission of the extraneous victim’s discussion of the crime’s impact. Roberts v. State, No. AP-75,051, ___ S.W.3d ___ (Tex. Crim. App. April 18, 2007) (6:3).

3 Poorly.

Judge Cochran derided the lower court’s assumption/speculation that the video supported the trial court’s ruling because the exhibit was not part of the appellate record and it had been the State’s suppression burden to prove the propriety of the warrantless arrest. Recognizing that the court and parties had treated the video as an admitted exhibit, Judge Cochran cited authority for later including that exhibit in the appellate record and suggested that, when Amador objected to supplementation, the Beaumont court should have ordered the trial court to resolve the dispute utilizing Rule 34.6(d) & (e) of the Rules of Appellate Procedure. The outcome: The Beaumont decision was vacated and the cause remanded for further consideration—also known as another bite at the apple. Judge Hervey’s three-vote dissent discussed, among other things, estoppel principles. Amador v. State, No. PD-0786-06, ___ S.W.3d ___, 2007 WL 1217267 (Tex.  Crim. App. April 25, 2007) (6:3).

4 Yes.

Presiding Judge Keller writes that both the rule’s use of the term “hearing” and the caselaw construing the statutory precursor to Rule 412 mandate that the in camera proceeding contemplated by Rule 412 is an adversarial hearing at which the parties are present and attorneys are permitted to question witnesses. The court unanimously concluded that Rule 412’s policy of protecting a victim’s privacy must be balanced against a defendant’s confrontation rights. The victim remains protected in that the hearing should be closed to spectators, thus limiting those who are privy to the information revealed. A trial court’s failure to follow this requirement is remedied by abating for a retrospectively conducted hearing. Judge Keller affirmed the Austin Court’s determination that the retrospective hearing had cured any error so, after all of this ping-pong appellate procedure, the conviction was upheld. LaPoint v. State, No. PD-1100-06, ___ S.W.3d ___, 2007 WL 1217340 (Tex.Crim.App. April 25, 2007) (9:0).

5 No.

Review of the propriety of a change-of-venue ruling turns on an abuse of discretion standard. A trial court can consider the pervasiveness of pretrial publicity as well as the voir dire process itself; this judge relied on both determinations. No evidence described how often the video actually played or the size of the viewing audience. Nothing showed that the pretrial publicity “infected” the entire community even though a significant segment of panelists knew of the case and could not set aside their conclusions. Presiding Judge Keller noted that the absence of pervasiveness alone supported the trial court’s ruling, yet she also noted that the repeated newscasts of the surveillance video—admissible trial evidence—could not be prejudicial or inflammatory without additional facts. Here, the trial judge could reasonably consider the distinction between pretrial dissemination of evidence that was inadmissible versus dissemination of evidence that the jury would ultimately hear. Indeed, Gonzalez benefitted from this voir dire discussion which enabled him to remove panelists who would decide guilt solely on the video’s basis. Historically, only the media’s showing of the shooting from the Jack Rubinstein (Ruby) case has required reversal of a pretrial venue ruling. Gonzalez v. State, No. PD-1750-05, ___ S.W.3d ___, 2007 WL 1343200 (Tex. Crim. App. May 9, 2007) (7:1:1).

6 No.

Judge Womack’s important decision resolved persistently conflicting law and held that the sole test for the first-prong of a lesser-included-offense analysis under article 37.09(1) of the Code of Criminal Procedure requires comparing the elements of the greater offense as pled in the indictment with the elements of the lesser offense as defined by statute. Commentators have labeled this the cognate-pleadings approach. The court eschewed other, more liberal evidence-based analyses because of their potential due-process problems. The cognate-pleadings theory allows instruction even when the lesser offense is not composed of a subset of the statutory elements of the greater crime so long as they can be deduced from the indictment-alleged facts. Thus, the first prong of the  analysis under the theory adopted does not hinge on the evidence adduced at trial and is a question of law which can be answered pretrial.

Aggravated assault by threat elementally includes threatening another with imminent bodily injury by displaying a deadly weapon (here, a gun) along with proof of one of three requisite mental states. Comparing these to the specific elements pled (murder caused by shooting with a gun with the intent to cause death or SBI while committing an act clearly dangerous to life), the lesser’s facts included two elements that are not the same (or less than) those required in the indictment. Neither threatening nor displaying are the same as the elements pled. That the trial evidence might include proof of threatening or displaying is irrelevant to the first-prong analysis.

Just as a reminder: The trial evidence still impacts the second prong of the lesser-included analysis (whether there is some evidence to support the lesser’s submission). The opinion reiterated the slight standard: anything more than a scintilla of evidence gives rise to that lesser instruction.

Two dissents were filed. Although not disagreeing with the cognate-pleadings approach, Judge Keller dissented because she believed the issue should not have been reached based upon estoppel principles because it was possible that Hall’s counsel requested the complained-of instruction and, if not, Hall acquiesced to the beneficial charge. Judge Hervey’s dissent noted that the caselaw overruled by the majority was inconsistent with the plain language of Article 37.09(1). She lamented the court’s failure to address another ground on which review had been granted regarding whether the submitted lesser-included was authorized under Article 37.09(2). The second subsection of 37.09 permits submission of a lesser offense where the difference stems from the degree of injury or injury risked. Judge Hervey believed that subsection (2) did not authorize the submitted lesser. Finally, she had also wanted the court to address the preservation issue raised by the State, especially because preservation matters should be considered systemic. Hall v. State, No. PD-1594-02, ___ S.W.3d ___, 2007 WL 1343110 (Tex.Crim.App. May 9, 2007) (5:4).

7 No!

In typical Judge Cochran fashion, she wrote that the term “probable cause” is frequently “beauty in the eye of the beholder.” She further explained that it is easier to state what probable cause is not, rather than define the term itself. In general, probable cause exists when, under the totality of the circumstances, there is a “fair probability” that contraband or evidence of a crime will be found at the specified location. Regardless of the definition of probable cause, when reviewing a magistrate’s warrant decision, appellate courts must apply a highly deferential standard which gives credence to the constitutional preference for reliance on warrants. Relying on the Davis decision from the last term, Judge Cochran discussed the importance of sticking to consideration of the facts within the affidavit, not focusing on facts that could or should have been included. See Davis v. State, 202 S.W.3d 149, 150-53 (Tex. Crim. App. 2006).

In this case, the sufficiency of the affidavit’s contents boiled down to the reasonableness of two inferences: The first involved whether the magistrate could determine that the package found in Cantu’s backseat was the same one thrown into his car after he left the Goddard Street building. The second turned on the reasonableness of the possibility of more drugs at the Goddard Street garage. Looking at these inferences, Judge Cochran observed that there had been no mention of a second package; thus, inferring that the package seized from Cantu was not the same one he tossed into the back seat involved speculation. Also, while it was possible that Cantu had taken all of the stored cocaine when he left the garage, it was at least as likely that the retrieved package was only part of the stored contraband.

Because probable cause is a fluid concept controlled by the assessment of probabilities in particular factual contexts, an appellate court must defer to the magistrate’s probable-cause finding when an affidavit demonstrates a substantial basis for a conclusion, and courts should not delve into consideration of facts which were omitted or might have been included in the affidavit. The court remanded the cause to Fort Worth for further consideration. Rodriguez v. State, No. PD-1013-06, ___ S.W.3d ___, 2007 WL 1343066 (Tex. Crim. App. May 9, 2007) (7:2).

8 No way, Jose.

Judge Meyers’ unanimous opinion reversed the Amarillo decision. On the heels of last year’s decision in Olivas v. State, 203 S.W.3d 341, 349 (Tex. Crim. App. 2006), Meyers wrote that, during a prolonged assault, the aggressor’s actions can include both threats and actual harm, a threat need not precede the harm, and—a big “duh” here—infliction of harm itself can be a threat of further harm, directly contradicting the lower court’s cockamamie revelation that “one cannot simultaneously be threatened with harm while the threatened harm is being inflicted.” While “threaten” is not statutorily defined, the bright-line rule fashioned by the Amarillo judges was too narrow. Whether a threat has been communicated is a fact-specific inquiry. The lower court’s restrictive analysis disregarded the reality of an ongoing assault in which a threat of harm can be communicated during the course of the assault. Schmidt v. State, No. PD-0402-06, ___ S.W.3d ___, 2007 WL 1343017 (Tex. Crim. App. May 9, 2007) (9:0).

9 No.

§62.110(c) prohibits a trial judge from excusing a prospective juror for economic reasons without the parties’ agreement. Relying on the harmless-jury-shuffle-error decision in Ford, the court agreed that a court reviewing a statutory error should consider what right the statute meant to protect and whether the error thwarted that right. See Ford, 73 S.W.3d at 925. Using this framework, §62.110(c) could not have been intended to protect the right to a venire consisting of a fair cross-section of the community because it relates to the procedures that apply after potential jurors are summoned. §62.110(c) was, instead, designed to retain an adequate number of panelists from which to choose a petit jury. Thus, to warrant reversal for this non-constitutional error, Gray needed to prove that the error deprived him of a lawfully constituted jury. Gray did not show this, nor even voice it. In the absence of any such showing, the court presumed that the jurors who served were qualified and the erroneous excusal of the salesman did not affect Gray’s substantial rights because the finally-constituted jury contained qualified jurors. Gray v. State, PD-1946-05, ___ S.W.3d ___ (Tex. Crim. App. May 23, 2007) (9:0).

10 Wrong.

Judge Price’s unanimous decision reversed the Fort Worth decision. The evidence disclosed that the grand jury had returned an indictment naming Natalie at about the same time as the Tracy case was true-billed. The evidence supported the inference that a clerical error had occurred, whereby the original indictment was mislaid and not placed in the clerk’s file. The remedy found in Article 21.25 properly rectified this clerical error. Dotson v. State, No PD-0614-06, ___ S.W.3d ___, 2007 WL 1490539 (Tex.Crim.App. May 23, 2007) (9:0).