Weekly Case Summaries: February 16, 2018

Texas Court of Criminal Appeals

Shortt v. State

No. PD-0597-15               2/14/18


May a defendant appeal an order granting “shock” community supervision?


Yes. Community supervision is statutorily the same whether granted as part of the original judgment or after execution of the sentence has begun. Ordinary community supervision granted under former Code of Criminal Procedure Art. 42.12, §3 or §4 suspends the imposition of the sentence and must be reflected in the written judgment. “Shock” community supervision under Art. 42.12, §6 suspends the execution of the sentence and will be reflected in an order, not the original or an amended judgment. Art. 42.12, §23(b) authorizes a defendant to appeal his conviction and sentence at the time he is placed on probation. The defendant’s right to appeal is triggered by placement in community supervision, regardless of when the community supervision is granted. Read opinion.

Dissent (Keller, P.J.):

Art. 42.12, §23(b) authorizes a defendant to appeal the “conviction and punishment” at the time he is placed on community supervision. The phrase “conviction and punishment” denotes a single event that must occur at the time the defendant is placed on community supervision. In “shock” community supervision cases a defendant’s “conviction and punishment” still occur at the time of sentencing, not when the order suspending execution of the sentence is granted. A later appeal after the order for shock community supervision is not authorized by §23(b), rather the defendant has the right of appeal when convicted and sentenced. Read opinion.


Giving a defendant the right to appeal an order granting “shock” probation may not appear to be that big of a deal. But the court has always required a legislative basis for an appeal in a criminal case. As such, this decision is fraught with confusion at best, and peril at worst. One need look no further than the majority opinion itself—the two full paragraphs on pages 9 and 10 in which the majority acknowledges unanswered questions created by this decision. There are other unanswered questions. For example, as noted in footnote 10 of the dissenting opinion, the court has long held that a defendant cannot appeal from an order modifying his probation. Does the court intend on overruling that long-standing holding by way of an expansive (and retroactive) reading Art. 42.12, §23(b)—what is now Article 42A.755(e)? This may be of interest only to appellate practitioners, but the court appears to have opened up a whole new level of post-conviction litigation.

Wagner v. State

No. PD-0659-15               2/14/18


Is Penal Code §25.07(a)(2)(A), criminalizing threatening or harassing communication in violation of a judicial order, unconstitutionally overbroad or vague?


No. The statute does not infringe upon a substantial amount of constitutionally protected free speech. It applies only to “family violence or other abusers whose communications with a particular person have ben judicially restricted through a protective order or bond condition.” The scope of the statute is also limited by the length of the protective order or bond condition. It does not implicate any constitutionally protected speech. Nor is the term “harassing manner” impermissibly vague because it is not defined. The plain meaning of “harass” is sufficiently clear to provide notice of the prohibited conduct. Read opinion.

Dissent (Keller, P.J.):

"The Court construes communication to be harassing under the statute if it is (1) annoying, disturbing, bothering, or troubling, and (2) continual, persistent, or frequent. The first part of this construction raises the question of just how irritating conduct must be, while the second part of this construction raises the question of how many times a person’s communication must be annoying before it is deemed to be a violation of the statute. … I would employ a definition that sets the intensity of the conduct as that which would produce substantial emotional distress. Under that definition, a defendant violates the statute if he intends or knows that his communication, or series of communications, is unwelcome and would cause substantial emotional distress to the protected individual.” Read opinion.


The majority opinion is an excellent source for the controlling authority on the constitutional claims that the defendant raised in this case. In that respect, the result was guided—if not controlled—by the court’s prior decision in Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010). As a practical matter, this decision will be of great help to domestic violence prosecutors. Such harassment by these defendants is often a precursor to physical assault or worse. A reading of this opinion reveals that this defendant may well have been on his way to attacking the victim again. 

Febus v. State

No. PD-1369-15               2/14/18


Must the State prove a culpable mental state to the failure-to-comply element of the offense of failure to comply with the requirements of registering as a sex offender?


No. In Robinson v. State, 466 S.W.3d 166, the Court held that the culpable mental state of “knowledge and recklessness” applies only to the duty-to-register element. It declined to apply the same culpable mental state to the failure-to-comply element. The State must only prove that the defendant knew or should have known about the duty to register; no additional culpable mental state is applicable regarding the failure to register. The Court declines to overturn Robinson. Read opinion.

Dissent (Richardson, J.):

“The majority in Robinson incorrectly limited its assessment of the culpable mental state required by the offense of failure to register to only the duty-to register element. Instead, I would hold that the offense of failing to register under the statute is violated when one (1) knows or should know that he has a duty to register and (2) intentionally, knowingly, or recklessly fails to comply with that duty to register. Therefore, I would ascribe a culpable mental state to both the duty to register and the failure to register, and not just to the duty to register.” Read opinion.


Prosecutors who work on sex offender registration violation cases need to read this case, as well as Robinson. It will be very helpful in showing how these cases can be proved under the current construction of the statutes.

Texas Courts of Appeals

Hughitt v. State

No. 11-15-00277-CR        2/8/18


Is possession with intent to deliver a controlled substance a proper predicate offense for a charge of engaging in organized crime?


No. The offense of engaging in organized crime requires a predicate offense from an enumerated list. Although delivery of a controlled substance is one of the numerated offenses, possession with intent to deliver is not. “Deliver” in the Controlled Substances Act means “to transfer, actually or constructively, to another a controlled substance.” Incorporating possession with intent to deliver into the meaning of delivery would be inconsistent with the definition under the Controlled Substances Act. Possession with intent to deliver cannot be a predicate offense for engaging in organized crime because it does not fall into any category in the enumerated list of possible offenses. Read opinion.


This decision is undoubtedly correct, but the Legislature should note that the offense of possession of a controlled substance with the intent to deliver is found in the same statute as the offense of delivery of a controlled substance.


A note about online Brady training

It’s been four years since mandatory Brady training was implemented, and many prosecutors will require recertification in 2018. TDCAA is working on an updated online training that will be available later this year. In the meantime, the 2014 training will remain on the website for any new prosecutors to take, but prosecutors requiring recertification cannot receive credit again for the same course. Stay tuned for more information on the new and improved training!


TV show “Criminal Confessions” is looking for Texas cases to be featured in their second season. For more information and how to get in touch with the producers, visit our site.


The National District Attorneys Association is holding a Digital Prosecutor training course in San Antonio February 19–22. The course is designed to assist the prosecution team in understanding and utilizing technology in investigation and trial, as well as learning how suspects are using technology. Visit our site for more information.

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