As the Judges Saw It
September-October 2007

Texas Court of Criminal Appeals edition

David C. Newell

Assistant County Attorney in Fort Bend County



Joshua Thompson was an associate pastor at a Baptist church, where his brother, Caleb, was also very active. In July, one of the Bible-study teachers reported to the associate pastor that an 11-year-old boy in the class was misbehaving. Joshua drove the boy to Caleb’s nearby residence. Associate Pastor Thompson beat the boy with a tree branch over  about 90 minutes while Caleb helped hold the child down. As a result of the beating, the child’s back from the neck to his buttocks was one large bruise. There was indication that the child had myoglobin in his kidneys, which is released into the bloodstream as a result of the death of muscle cells. Had the boy not received prompt medical attention, he would have died from renal failure.

Joshua Thompson was charged with first-degree felony injury to a child and second-degree felony aggravated assault. The jury was instructed that they could find Joshua Thompson guilty of first-degree injury to a child if he merely intended to cause bodily injury to a child, and he actually caused serious bodily injury to a child.

Keeping in mind that third-degree injury to a child is committed when a person intentionally or knowingly causes bodily injury to a child, was the transferred intent instruction proper?

    yes ______         no ________


Kerry Rollerson was convicted on seven different felony charges stemming from three burglaries of three separate homes that occurred on three consecutive days. While Rollerson took guns in the robberies of two of the homes, in the robbery of the third home, no guns were taken because the owner, James Hines, did not own a gun. Curiously, however, Rollerson had left a revolver cylinder in the front bedroom and the gun’s cylinder pin outside. As Hines did not own a revolver, he noticed the discarded cylinder and some shells inside.

For the Hines case, Rollerson was charged with burglary of a habitation. The trial judge heard all seven cases in a consolidated trial and found Rollerson guilty of all seven offenses, including the Hines burglary. The trial judge also entered a deadly weapon finding in each case. The court of appeals determined that the evidence was factually insufficient in the Hines case, thereby sending the case back for re-trial. The court of appeals also found the evidence legally insufficient to support any of the deadly weapon findings, meaning that the State could not again seek a deadly weapon finding on the retrial of the Hines burglary.

Is the State collaterally estopped from seeking a deadly weapon in the retrial of the Hines burglary?

    yes ______         no ________


Assistant Harris County District Attorney Warren Diepraam was handling what looked to be another tragic intoxicated manslaughter case. This one involved Mark Wayne Lomax who had a blood-alcohol level at three times the legal limit. Lomax was speeding, weaving, and tailgating on a crowded public street when he collided with a truck,  resulting in the death of a 5-year-old girl. Diepraam also noted that Lomax had two prior convictions for DWI at the time of the wreck. As Diepraam stroked his soul patch contemplatively, he realized that Lomax had committed a murder in the furtherance of committing a felony, namely felony DWI. Thus, Diepraam decided to charge Lomax with felony murder, with felony DWI as the underlying felony. Lomax filed a motion to quash alleging that felony DWI could not serve as the underlying felony for felony murder because DWI does not require a culpable mental state.

Can Diepraam charge Lomax with felony murder where the underlying felony expressly requires no culpable mental state?

    yes ______         no ________


Efrain Alameda was going through a divorce when he moved in with a female friend named Deborah, whom he had known for eight or nine years, and her 12-year old daughter. Alameda lived in an extra bedroom for almost a year until he was able to get a place of his own. After he left, Deborah became suspicious that Alameda was still communicating with her daughter, who is identified only as J.H., without her knowledge (quite the paradox, I know). Deborah attached a listening device to the phone jack in the garage so that she could record all incoming and outgoing calls. Over two weeks she recorded almost 20 hours of conversations between Alameda and her daughter, neither of whom knew they were being recorded.

Prosecution ensued for, you guessed it, aggravated sexual assault of a child. Prior to trial, Alameda filed a motion to suppress the audiotapes, claiming that their recording was a violation of Penal Code §16.02 (interception of a wire communication without consent) and should be suppressed under article 38.23 of the Code of Criminal Procedure. The trial court held that Deborah could vicariously consent to the recording of J.H.’s phone conversations, and the tapes were admitted.

Can Deborah vicariously consent to recording her child’s phone conversations?

    yes ______         no ________


Eugene Robert VanNortrick was indicted on two counts of aggravated sexual assault of a child under 14. He pled guilty and elected to have the jury assess punishment. After voir dire and outside the jury’s presence, the trial court admonished him orally as to the range of punishment and the requirements of registering as a sex offender. He was also admonished in writing as to the requirements of registering as a sex offender. He was not admonished about the immigration consequences of a guilty plea by a non-U.S. citizen. The record was “silent” as to VanNortrick’s citizenship status, though his pen pack showed that he had been previously convicted of a felony in Michigan.

Was the failure to admonish about immigration consequences harmless error?

    yes ______         no ________


Robert Nesbit was placed on probation for 10 years beginning April 29, 1994. The State filed a motion to revoke on April 29, 2004. Was the motion to revoke timely filed?

    yes ______         no ________



Barbara Bell Johnson called 911 shortly before midnight. She was hysterical and kept telling the 911 dispatcher, “Come, come, I killed him.” She gave directions to her house when the dispatcher informed her that she needed to know where Johnson lived to send police there. She kept repeating that she shot her husband, that he used to beat her, and that he wouldn’t do it anymore. Johnson agreed to meet the police officer in her garage after repeatedly requesting that the 911 dispatcher send an officer.

When police arrived, Johnson was handcuffed for safety’s sake and placed in the patrol car. The officer then went inside the house to look for the dead husband. The officer performed a brief protective sweep and noticed the .380 pistol that Johnson had used to shoot her husband. The officer went back outside and called the paramedics. When they arrived, both the officer and the paramedics went back into the home. About 15 minutes later, an investigator arrived and moved Johnson to another car because the first officer had to leave. Johnson even asked one of the officers if there was anything that the police wanted her to show them inside the house.

Johnson later filed a motion to suppress, claiming that the third entry into the home was not justified under the emergency aid doctrine. The trial court denied the motion, ruling that Johnson had consented to the search and even if there were no consent, the evidence was still admissible because the officer had seen it in plain view when he was lawfully justified to be in the house (the first entry). The court of appeals held that the third entry was not justified under the emergency aid doctrine, but the admission of the evidence was harmless error.

Was the evidence admissible based upon consent or based upon the emergency aid doctrine? (You thought it was going to be another “yes” or “no” question, eh?)

    consent ______    
    emergency aid doctrine ______


Guadalupe Vasquez shot his landlord, Gary Jackson, twice in the chest and once in the head. We know this because Vasquez signed a written confession after seven hours of interrogation at the police station. Vasquez had been asked for a statement, and he voluntarily drove to the police station with his wife. One of the detectives doing the interrogation testified that prior to the interview, he did not have probable cause to arrest Vasquez and that Vasquez was not in custody, was not in handcuffs, and was free to leave at any time. During the seven-hour interrogation, Vasquez’s requests to leave were either deflected or ignored. The trial court denied Vasquez’s pre-trial motion to suppress the statement that claimed it was not voluntary, and the videotape of the interview and the written statement were admitted at trial. Vasquez requested a jury instruction on the voluntariness of the confession. The State objected, claiming that there was no factual dispute, and therefore, voluntariness became a legal question that was not appropriate for the jury to decide. Vasquez replied that the evidence had raised an issue of voluntariness so he was entitled to a jury instruction because article 38.22 requires such an instruction when the evidence is raised.

Is Vasquez entitled to a jury instruction on the voluntariness of his confession?

    yes ______         no ________


Billy Moore was convicted of misdemeanor driving while intoxicated. On March 22, 2005, the trial court imposed a sentence of 100 days in jail. The next day, Moore’s trial counsel filed a timely motion for new trial and a motion to withdraw as counsel. On May 13, 2005, Moore’s new attorney, an appellate one, filed an amended motion for new trial along with leave to file the amended motion. This was more than 30 days after imposition of the sentence, and the amended motion raised two new grounds not raised in the original motion. One of these grounds claimed a Brady violation, but the motion itself contained no supporting affidavits.

On May 20, 2005, Moore’s appellate counsel filed a second amended motion for new trial, this time with the accompanying affidavits and another motion for leave to file the motion for new trial. The trial court granted leave to file the second amended motion on the same day it was filed and set a hearing for the motion on June 3, 2005, the 73rd day after the sentence was imposed. After the hearing, the trial court granted the motion based upon the Brady allegation alone.

On June 14, 2005, the State filed a motion for reconsideration alleging for the first time that the trial court lacked the authority to rule on the amended motion, but the trial court denied the State’s motion because it was more than 75 days past the imposition of sentence. The State appealed.

Should the trial court’s order granting a new trial be reversed?

    yes ______         no ________


Michael Scott admitted to taking part in the Yogurt Shop Murders that occurred in Austin. He was convicted of capital murder, but based upon the jury’s answer to the first special issue, he was given a life sentence. In a prior, separate trial, his accomplice, Robert Springsteen, was also convicted of capital murder (and sentenced to death), but his sentence was commuted to life after the Supreme Court’s decision in Roper v. Simmons.

During the trial, Springsteen’s statement was introduced against Scott to corroborate Scott’s statement. Though his earlier versions of events tended to exculpate him, in a later statement Scott admitting to helping tie up the victims and raping one of the girls and shooting her, though he claimed he did so at gunpoint. There was no “CSI” evidence tying Scott to the offense. The Court of Criminal Appeals agreed with the court of appeals that the co-defendant’s statement was admitted in violation of Crawford.

Was it harmless error?

    yes ______         no ________


1 Yes.

Penal Code §6.04(b)(1) authorizes the transfer of culpable mental states between offenses contained in the same statute and also between greater and lesser included offenses. Penal Code §6.04(b)(1) provides that a person is criminally responsible for causing a result if the only difference between what he desired, contemplated, or risked was that a different offense was committed or a different person or property was injured, harmed, or otherwise affected. According to the majority opinion, offenses are “different” if they are based upon different legal theories. However, this explanation appeared to implicate the “mistake of fact” defense found in §8.02 of the Penal Code. The majority ultimately determined that “mistake of fact” may be raised as a defense in situations (such as the one in Thompson’s case) where a defendant claims that he intended to cause only bodily injury, not serious bodily injury. However, the majority hastened to add that the mistake must be reasonable for “mistake of fact” to be raised as a defense. Adding insult to injury, the Court of Criminal Appeals had previously held in Honea v. State that the doctrine of transferred intent did not implicate a “mistake of fact” defense, but the court overruled that portion of Honea in Thompson’s case. Thus, Thompson had not requested a “mistake of fact” instruction at the trial so he was not entitled to relief based upon the absence of such an instruction in the jury charge in this case. I certainly hope Thompson learned his lesson. Thompson v. State, _____ S.W.3d _____, 2007 WL 1828341 (Tex. Crim. App. June 27, 2007).

2 No.

According to the Court of Criminal Appeals, neither the double jeopardy clause nor collateral estoppel bars the re-litigation of the deadly weapon issue. Both the State and the defense agreed that double jeopardy did not apply to sentencing proceedings for non-capital offenses. However, Rollerson argued that the State could not relitigate the issue because it had already litigated the deadly weapon finding and received an adverse finding on an ultimate issue. While the majority agreed that a deadly weapon finding can be an ultimate issue, it pointed out that for collateral estoppel to apply, the defendant must receive a favorable ruling on ultimate issue from the factfinder. Here, the factfinder had found against Rollerson in the first trial. “It does not matter, for purposes of collateral estoppel, that the court of appeals found the evidence legally insufficient to support the original factfinder’s determination. The court of appeals was not the original factfinder.” Judge Womack dissented but did not write an opinion. Rollerson v. State, _____ S.W.3d _____, 2007 WL 1828947 (Tex. Crim. App. June 27, 2007).

3 Yes.

Felony murder may be predicated upon the underlying offense of felony DWI. The Court of Criminal appeals noted that its job is to interpret the law as the legislature enacts it, regardless of how harsh it seems. Consequently, the majority agreed with Diepraam’s literal, common-sense reading of the felony murder statute which allows felony murder to be predicated upon any felony except manslaughter. According to the majority, the felony murder statute dispenses with a culpable mental state because the very purpose of the statute is to punish an “unintentional murder” consistent with the historical purpose of the felony-murder rule. Thus, the majority rejected the defendant’s claim that “murder has never been a ‘strict liability’ crime in Texas.”

The majority also rejected the claim that the felony murder statute is unconstitutional because it is vague and indefinite for failing to allege a culpable mental state. The judges overruled a portion of their opinion in Rodriguez v. State, 548 S.W.2d 26 (Tex. Crim App. 1977), which seemed to hold that “the act of murder” required a culpable mental state in a felony murder prosecution. As the court explained, Rodriguez could not hold that “the act of murder” required a culpable mental state because that would be inconsistent with a holding that felony murder gets its culpable mental state from the underlying offense which would always necessarily be different from a culpable mental state for the act of murder. Moreover, the majority rejected the claims that legislative changes to the felony-murder statute and the addition of more specific intoxicated-related offenses indicated that the legislature intended for DWI homicides to be prosecuted exclusively as intoxication manslaughter. The court reasoned that the non-substantive changes to the statute in 1993 merely gathered all intoxication related offenses into one section, and they did not suggest a legislative intent to render those sections the exclusive vehicle (so to speak) for intoxication offense prosecution. Nothing in those new sections, nor in the felony murder statute, limits the prosecution of intoxication-related homicides to intoxication manslaughter or excludes felony DWI as a possible predicate felony for purposes of felony murder.

The court also rejected Lomax’s argument that allowing felony DWI to be a predicate for felony murder had the effect of “swallowing up” intoxication manslaughter. This argument failed, according to the majority, because this “merger doctrine” argument was based upon the erroneous premise that felony DWI was a lesser-included offense of intoxication manslaughter. Putting aside the defendant’s assumption that “intoxication manslaughter” could not be the predicate felony for purposes of the felony murder statute, the court determined that felony DWI was not a lesser-included offense of intoxication manslaughter and therefore was not exempted from the felony murder statute.

Finally, the majority dismissed the dissent’s claims that intoxication manslaughter was a specific statute and it therefore governed over the general felony murder statute because the two statutes were in pari material. The court found no irreconcilable conflict between felony murder and intoxication manslaughter because both statutes were designed to cover different situations and they were not intended to be considered together.

P.S. Diepraam’s prosecution of the case resulted in a 55-year prison sentence for Lomax. Lomax v. State, ______ S.W.3d ______, 2007 WL 1829371 (Tex. Crim. App. June 27, 2007).

4 Yes.

A parent can vicariously consent on behalf of her minor child to taping telephone conversations as long as the guardian has a good-faith, objectively reasonable basis for believing it is necessary and in the child’s best interest. Because this case spawned a few concurring opinions and one dissenting one, the rationale for the tape’s admissibility may seem a little confusing. Four judges (Meyers, Price, Johnson, and Cochran) based the decision to admit the tapes on cases that indicate a minor child has no expectation of privacy when a parent is routinely allowed to enter a child’s room. Under this reasoning, a parent is allowed to vicariously consent to a search of the child’s room. Therefore, by extension, a parent can vicariously consent to the recording of the conversation.

Four other judges (Keller, Keasler, Hervey, and Womack) wrote a concurring opinion to approach admissibility from another angle. According to this concurring opinion, there was never an “interception” of the communication under §16.02 because there is an exception to the definition of “intercept” that allows parents to surreptitiously record their own minor child’s conversations as long as the parent is doing so in the ordinary course of the parent’s business of caring for the child. The concurrence reaches this decision by noting that federal courts have recognized a similar exception in the federal wiretapping statute, the same statute upon which Texas wiretapping statutes are based.

Judge Holcomb dissented because of a sentencing error and never discussed the tape’s admissibility.

Judges Keasler, Hervey, and Presiding Judge Keller, joined the opinion authored by Judge Meyers without limiting the approval solely to the outcome. Therefore, that seems to make Meyers’ opinion the majority one, though it seems four judges would go farther and say, not only can a mother vicariously consent to taping her daughter’s phone calls, but if she does so, she doesn’t “intercept” the wire communication. Still, the good news for everyone appears to be that all the judges agree that the tapes were admissible. Good news for everyone, except Alameda, that is. Alameda v. State, _____ S.W.3d ______, 2007 WL 1828371 (Tex. Crim. App. June 27, 2007).

5 No.

The failure to admonish a defendant about the immigration consequences for a non-U.S. citizen who pleads guilty is harmful error where the record is silent as to the defendant’s citizenship status. The State first argued that the Michigan felony gave a “fair assurance” that VanNortrick was a U.S. citizen and the court of appeals should’ve drawn the reasonable inference that VanNortrick was a U.S. citizen. A unanimous Court of Criminal Appeals rejected this argument explaining that there were any number of inferences that could have been drawn from the prior conviction that would not have negated the possibility that VanNortrick was a non-citizen. As Womack essentially put it, just because he wasn’t deported doesn’t mean he wasn’t deportable.

The court also rejected the State’s second argument that under a silent record, it was impossible to establish harm. The court explained that with a silent record regarding citizenship, it was impossible to have a fair assurance that VanNortrick would not have changed his plea had he been informed of its immigration consequences. Moreover, the evidence against VanNortrick, though strong, made little difference to the court’s determination of harm. The court reasoned that nothing in the record indicated that VanNortrick knew the immigration consequences of his plea and there was no way of knowing how overwhelming evidence of guilt would affect the thought process of a non-U.S. citizen considering entering a plea. Finding that they had no fair assurance that VanNortrick’s substantive rights were not affected (their double negative, not mine) by the trial error, the judges reversed the plea.

So when a trial court fails to admonish a defendant about the immigration consequences of a guilty plea and the record is silent as to citizenship (or there’s a prior felony conviction in Michigan), harm is established. VanNortrick v. State, _____ S.W.3d ______, 2007 WL 1828918 (Tex. Crim. App. June 27, 2007).

6 No.

The motion to revoke was a day too late. The term of probation begins on the very first day of sentencing because a defendant’s freedom is restricted on that day, and if the first day is counted, the last day cannot be counted, as that would add a day to the sentence.

I know what you’re thinking: What about Government Code §311.014 which says that for computation of time you don’t count the first day and you do count the last day? Explaining that computation of time depends on the purpose of the time period, Judge Cochran notes that when you must exercise a right during a time period, you start counting on the first day. However, when the last day is more of a deadline, the last day is counted to give you the full benefit of the time period. Most importantly to Judge Cochran, there’s “no double counting.” Because the first day has to be counted (remember the defendant is subject to restrictions on his rights on that first day), the last day can’t be counted, as that would increase the overall time of probation. As Presiding Judge Keller points out in her concurring opinion, article 42.09 §1 of the Code of Criminal Procedure seems to require that the first day be counted because the statute states that the sentence begins on the day the sentence is pronounced. Given that the Government Code section dealing with time computation is a more general statute, the specific Code of Criminal Procedure section, according to Judge Keller’s concurrence, should control. Judge Hervey remained unconvinced (as did Judge Keasler and Judge Meyers), and she said so in her dissent. This opinion was 14 pages long, but only if you include the orphaned footnote fragment on page 14. Nesbit v. State, _____ S.W.3d _____, 2007 WL 1695349 (Tex. Crim. App. June 13, 2007).

7 Consent.

While all the judges at every stage of the game seemed to agree that the conviction should stand and most everyone agreed that the evidence was admissible, ultimately the majority concluded that Johnson’s repeated pleas for police assistance and her offer to help search the house amounted to voluntary consent of searching the home. In upholding the search based upon the implied consent, the court noted that when a homeowner calls 911 and requests immediate assistance because of an emergency, he is indicating his consent to the arrival and entry of the responding officers to resolve that emergency and, absent any evidence of the revocation of that consent, an objectively reasonable limited investigation by responding officers into said emergency. As Judge Cochran succinctly puts it, the police did exactly what Johnson asked them to do. This is not illegal conduct. Johnson was clearly in a position to revoke her consent, but she instead offered to go into the home to help the officers. Additionally, the fact that there were three entries into the home didn’t make the police’s level of intrusion any less reasonable, as a person who calls 911 surely expects the police to enter the home, take pictures, and perform a cursory search relevant to the homeowner’s call.

Judge Johnson wrote a concurring opinion (along with Judges Meyers and Price) that found no problem with the first two entries but took exception with the third. These three said a warrant should have been obtained for the third entry. However, because the defendant had readily admitted to shooting her husband and the only issue was self-defense, any error in admitting the evidence was harmless, according to the concurring opinion. Johnson v. State, _____ S.W.3d _____, 2007 WL 1695323 (Tex. Crim. App. June 13, 2007).

8 Yes.

Unlike an article 38.23 jury instruction, a factual dispute is not a prerequisite to an instruction on the voluntariness of a confession under article 38.22; all that is required is that some evidence raises the issue. As the majority explained, article 38.22 clearly sets out the procedure when a confession’s voluntariness is challenged. When a question is raised regarding its voluntariness, the trial court must hold a hearing and make an independent finding about the voluntariness of the confession outside the jury’s presence. Upon a judge’s finding as a matter of law and fact that the statement is voluntary, the statement can go to the jury, but the jury is to be instructed to disregard the statement unless they believe beyond a reasonable doubt that the statement was voluntarily made. The majority noted the difference between article 38.23 and article 38.22; the former requires a factual dispute (based upon caselaw), the latter requires only that a question be raised about voluntariness.

Of course, the majority never explained how you can raise an issue without a factual dispute, how it’s somehow OK for the jury to decide a question of law, or what the distinction between a question being raised (article 38.22) and an issue being raised (article 38.23), but hey, the judges did cite to Dix and Dawson. The good news is that, by drawing the distinction between articles 38.23 and 38.22, it appears the majority is willing to toe the line when it comes to requiring a factual dispute in 38.23 cases. Vasquez v. State, 225 S.W.3d 541 (Tex. Crim. App. June 6, 2007).

9 No.

Even though a defendant cannot amend a motion for new trial more than 30 days after imposition of the sentence, the State still must object to the untimely amendment to stop the trial court from entertaining such an amended motion. The majority goes through a lengthy discussion of the history of the rules regarding motions for new trial which I will not reproduce here. Suffice it to say, the court rejects the idea that the trial court lacks jurisdiction or authority to consider an amended motion. The court characterizes this rule as one of “claim processing” based upon Eberhart v. United States, 546 U.S. 12 (2005), a United States Supreme Court case that interpreted the federal deadlines for filing a motion for new trial.

Moreover, the court recognized that to reach a decision where a defendant could file an amended motion with leave of court after the first 30 days would require the court to overrule its precedent in Dugard v. State, something the court was unwilling to do. Indeed, the court even hinted that interpreting this rule of appellate procedure to allow for such an amendment in contrast to previous caselaw might abridge, enlarge, or modify the defendant’s substantive rights, something the court cannot do. Thus, the trial court should not have granted the amended motion for new trial, but Moore still gets a new trial because the State didn’t object to the amendment. State v. Moore, 225 S.W.3d 556 (Tex. Crim. App. June 6, 2007).

10 No.

The admission of the co-defendant’s statement in violation of Crawford in this case was not harmless error. According to the majority, the defendant had impeached or challenged most of the evidence that corroborated Scott’s statement. Moreover, the prosecution asked the jury to compare the two statements during final argument, thus compounding the error by emphasizing the erroneously admitted statement. This, according to the majority, was enough to move the jury in its decision making so that the error was not harmless beyond a reasonable doubt. The four-judge dissent, led by Presiding Judge Keller, noted that the only impeachment was from the conflict between Scott’s earlier denials; thus, the evidence was corroborated by his own statement and not the co-defendant’s statement. Scott v. State, _____ S.W.3d ______, 2007 WL 1610493 (Tex. Crim. App. June 6, 2007).