Weekly Case Summaries: May 9, 2014


Texas Court of Criminal Appeals

Ex Parte Chance

No. WR-81,136-01                 5/7/14


Was the defendant, previously convicted of online solicitation of a minor under the now-unconstitutional §32.021(b) of the Penal Code (see Ex Parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013)), entitled to have his conviction set aside?


Yes, although the per curiam opinion does not give the reasoning behind the decision. Read the opinion.

Concurrence (Cochran, J.):

It is hornbook law that a statute that has been declared unconstitutional is void from its inception and cannot provide a basis for any right or relief. A person may always obtain relief from an indictment or a conviction based on a penal statute that has been previously declared unconstitutional through any appellate mechanism, because legally, that person is “actually innocent” of the crime. Read the concurrence.

Dissent (Keller, P.J.):

The concurrence may be correct in asserting the voidness of a conviction based on an unconstitutional statute. But because the majority does not provide any reasoning for granting relief in this case, it cannot be ascertained if the concurrence is correct or not. Given that a number of similar cases are likely to be before the court in the coming months, and given that the State opposed relief in this case and provided arguments to that end, the court should undertake a full, written opinion establishing the legal reasoning behind the relief granted. Read the dissent.


Ex parte Lo has created hundreds—perhaps thousands—of problems for Texas prosecutors. Some of these defendants pled down from other, valid, offenses. Most of them never complained about the statute in question. Furthermore, habeas corpus law has evolved for many years to cut down on the number of untimely and frivolous claims. In this case, the Court was confronted with a claim that the State opposed on procedural grounds. Three judges say the State is wrong; three say “not so fast.” But three others did not take a position, so we do not know the answer. The silent judges should not dodge this issue. That they do so leaves these defendants, their lawyers, and prosecutors in limbo.

Whitfield v. State

No. PD-0865-13                     5/7/14


Do the courts of appeals have jurisdiction to consider a convicted person’s appeal of unfavorable findings from a hearing on DNA testing?


Yes. The broad language of Chapter 64 of the Code of Criminal Procedures allows such an appeal. The court’s previous opinion to the contrary in State v. Holloway, 360 S.W.3d 480 (Tex. Crim. App. 2012) is overruled. Read the opinion.

Concurrence (Price, J.):

The legislature has conferred jurisdiction on the courts of appeals to consider the appeal of unfavorable findings under Chapter 64, but perhaps not favorable findings. Read the concurrence.

Concurrence (Alcala, J.):

Because the concurrence concluded that the majority opinion is ultimately correct on all points but too shallow in its analysis, Judge Alcala’s concurrence addresses the points in the majority opinion in more detail. Read the concurrence.


Whether an appellate court agrees or disagrees with a Chapter 64 favorability finding will not affect the Court of Criminal Appeals’ ultimate disposition of a writ of habeas corpus or the Governor’s decision on a request for pardon.

Acosta v. State

No. PD-1211-13                     5/7/14


Is a dog alert on a package containing money as if it contained drugs a piece of circumstantial evidence that a court may consider with other factors in determining sufficiency of the evidence to establish the money was proceeds from the delivery of a controlled substance?


Yes. The court has previously held in Winfrey v. State, 323 S.W.3d 875, 876-878 (Tex. Crim. App. 2010) that “scent lineups” when used alone or as primary evidence, are legally insufficient to support a conviction. But a drug-dog alert to the scent of narcotics on money is widely accepted in Texas as circumstantial evidence of a nexus between the money and drugs. Read the opinion.


This may belong in your legal sufficiency standard of review section in future appellate briefs: “[W]e do not consider evidence myopically or point out problems with the individual, separate facts underlying the State’s case because all of the evidence—both direct and circumstantial—must be evaluated as a whole by the reviewing court.” Good stuff.

Whitson v. State

No. PD-0514-13                     5/7/14


When there is an internal conflict in an order extending the term of community supervision, does the stated time by which the term is extended control (e.g. “one year”), or does the calendar date specified in the order control (e.g. “to henceforth terminate January 1, 2015”)?


The length of time announced in the order, not the specific date, controls. Read the opinion.

Concurrence (Keller, P.J.):

The court’s opinion begs the question to be answered by assuming a term of probation is measured in years and months instead of a specified calendar date. Read the concurrence.


Perhaps the real solution here is for probation officers and prosecutors to stop the apparently widespread practice of waiting until the last possible second of a defendant’s term of probation to file a motion to revoke. That way, errors in calculating the drop-dead date will not affect the ability to prosecute the motion.



Texas Courts of Appeals

Halili v. State

No. 14-13-00021-CR              4/24/14


May an officer conduct an undercover investigation outside his jurisdiction, meaning that any evidence gathered via that investigation is legally obtained and can properly form the basis of a search warrant?


Yes. Although the officer has no authority as a peace officer outside of his jurisdiction and is essentially acting as a citizen, there is nothing illegal about a citizen gathering that evidence. Read the opinion.


This case offers insight into how courts should apply Texas’s unusual exclusionary rule in our increasingly regulated and legalized society. This defendant loses because an officer acting undercover outside his jurisdiction did not violate a privacy or property right of the defendant when he entered the 8-liner parlor and played games.

Saxon v. State

No. 05-13-00014-CR              4/24/14


When Count 1 of an indictment charged the defendant with committing murder through a physical assault or by setting a house on fire and leaving the victim inside to die, and Count 2 of the indictment charged the defendant with arson causing the death of the victim, but the actual language of the jury charges charged only murder by assaultive means and arson that destroyed property, did the defendant’s conviction on both counts violate Double Jeopardy?


No. By not objecting to the jury charge, which omitted the language that alleged arson caused the death of the victim, the State abandoned those manner-and-means portions of the indictment. As a result, the defendant was convicted of two different crimes: murder and arson. Read the opinion.


The State’s choice to abandon the “overlap” language was a good one. It is a really special defendant who cuts his mama’s throat and burns her up.


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