The following are summaries of what I believe are the most criminal decisions issued over the last several months. Copies of the opinions can be found at the official court website. You can find the Court of Criminal Appeals website here. To access the opinions use the search feature on each court's website, entering the case name and cause number,.

This summary is prepared quarterly for the General Practice Section of the State Bar of Texas, and sent to the members of that section across the State.


            A. INDICTMENTS

 Motion to Quash – State v. Martin, No. 12-0456-CR (Tex. App. - Beaumont, 5/8/13) D was charged with theft of gold and jewelry. He filed a motion to quash, arguing he needed more specific information about what he stole. State argued indictment was sufficient, but if it wasn't they should be allowed to  provide notice by other means. Four weeks later the court granted the motion. State argues on appeal that they provided D's attorney with information in their file that adequately identified the items. COA holds the court was never asked to rule on whether information in the file could constitute substitute notice, so State has failed to preserve that issue for review.

            B. SEARCH & SEIZURE

Warrantless blood draws – Missouri v. McNeely, No. 11-1425 (S.Ct. 4/17/13) D was arrested for DWI. He refused to take a breath test, and was taken to hospital to draw blood for blood test. State argued no warrant was required because delay would result in destruction of evidence, due to the dissipation of alcohol in the bloodstream over time. Court holds that is not a sufficient reason to authorize a warrantless blood draw in every case.

Note: This decision leaves a number of issues undecided. It appears warrantless blood draws may still be permissible in some cases, based on the “totality of circumstances”.

Plain view – Betts vs. State, No. PD-1221-12 (Tex. Crim. App. - 4/17/13) Officer received call about animals fighting at a residence. He went there, and went to the backyard where he saw animals that appeared to be malnourished. He then entered the backyard because he believed the animals were in immediate danger. CCA holds that even though animals were in plain view, that did not authorize officers to make a warrantless entry into the backyard.

Apparent consent – Baird v. State, No. PD-0159-12 (Tex. Crim. App. - 5/8/13)  D had someone house sit and watch his dog while he went on vacation. While he was gone the house sitter went into the bedroom and used his computer, on which she found child pornography. D argued she did not have his consent to enter the bedroom and use the computer. CCA rejects that argument, and adopts definition for apparent consent - “assent in fact that while not communicated expressly is no less clear and manifest to the understanding for not having been verbalized.”

Blood draws – EMT's – Krause v. State, No. PD-0819-12 (Tex. Crim. App. - 5/8/13) D was taken to the hospital where his blood was drawn by an EMT at the hospital. CCA holds she was not an emergency medical services personnel, and was a qualified technician within the meaning of the statute.

Consent – automobiles – State v. Copeland, No. PD-1340-12 (Tex. Crim. App. - 5/8/13) Police received information that people were frequently coming and going from a house. They saw a car drive away and after observing traffic violations initiated a traffic stop. They asked for consent to search, which the driver granted. However, D who was in the passenger seat refused consent. D argued the S.Ct. Decision in Georgia v. Randolph, 547 U.S. 103 (2006) authorized the passenger to grant or refuse consent since she had equal authority to do so. CCA holds cars are not mobile castles, and Randolph does not apply.                    

            C. CONFESSIONS

No cases decided

            D. VOIR DIRE

No cases decided



 Comment on Silence – Salinas v. State, No. 12-246 (S.Ct. 6/17/13) Police asked D to come to station for questioning. He was not in custody, so he was not given Miranda warnings. D answered questions until they asked if the shotgun found at  his home would match the shells found at the scene, when he remained silent. Prosecutor pointed that out at trial, arguing an innocent person would have said “What are you talking about, I didn't do that, or I wasn't there.” S.Ct holds D cannot rely on Fifth Amendment protection against self-incrimination because he never invoked it. To rely on that right, a defendant must first assert it.

Outcry – Bays v. State, No. PD-1909-11 (Tex. Crim. App. - 4/17/13) Trial court admitted a 30 minute video interview of the victim, which was made by the person designated as the outcry witness. CCA holds that was error. There is a specific statute governing videotaped interviews of children, which was not complied with. If a videotape of the outcry was admissible it would create a loophole in the statute.


 Confrontation – lab report – Burch v. State, No. PD-0943-12 (Tex. Crim. App. - 6/26/13) D was charged with possession of cocaine. The State introduced a TDPS report to establish the substance was cocaine. The analyst who prepared the report was no longer with TDPS at the time the report was prepared so the State introduced the report through her supervisor. Court held that was not permissible because it denied D the right to confront the person who actually performed the tests.


Mistake of Fact – Celis v. State, No. PD-1584-11 and 1585-12 (Tex. Crim. App. 5/15/13) D was charged with falsely holding himself out as a lawyer. Statute does not include a culpable mental state, and court holds one is not required. Court also holds the mistake of fact defense is limited to mistakes that negate the culpable mental state.

Note: this is another decision that produced fractured opinions – on each of the issues so how it will be applied in future cases is anyone’s guess.

            D. ARGUMENT

No cases decided

            E. SENTENCING

 Double jeopardy – Ex Parte Denton, No. AP-76,801 and AP-76,802 (Tex. Crim. App. 5/22/13) Defendant was convicted of both aggravated robbery and aggravated assault for an incident involving two victims. Both indictments alleged threatening or placing the complainant in by firing a firearm, and threatening the complainant by using a firearm. Court holds that aggravated assault was a lesser included offense of aggravated robbery, and therefore he could only be convicted of one charge. Judge Meyers dissented, noting the decision was in conflict with Ex Parte Parrot decided in January, where the court held a defendant had to show harm to obtain relief in an illegal sentence claim.

Restitution – Hanna v. State, No. 07-12-0539-CR (Tex. App. - Amarillo, 5/8/13) D was convicted of DWI. He had struck a telephone pole owned by Lubbock Power and Light. When he plead guilty, judge assessed restitution for the telephone pole at more than $7,000. Court holds LP&L was not a victim of the offense, and therefore restitution is not appropriate.

Court costs – appointed investigator – Martin v. State, No. 06-12-0187-CR (Tex. App, - Texarkana, 6/28/13) Court holds cost of investigator is part of a “constitutionally mandate defense”. Indigent defendant cannot be required to repay those, just as they cannot be forced to repay costs for appointed counsel.

Restitution – Gutierrez – Rodriquez v. State, No. 07-11-0419-CR (Tex. App. - Amarillo, 6/27/13) D was charged with theft; complaint alleged the theft of a GPS and ipod. Court ordered restitution for items not recovered, including 2 knives, a flashlight and ZUNE radio. Court holds restitution could not be required for those items since he was not found criminally responsible for taking them.

 Court costs – Cates v. State, No. PD-0861-12 (Tex. Crim. App. - 6/26/12) Court found D was indigent, but assessed attorneys fees and ordered that they be paid out of his inmate trust account. CCA holds the statute requires a present determination of indigency, and does not allow for speculation about future resources.


 Telephonic harassment – Wilson v. State, No. 01-11-1025 (Tex. App. - Houston [1st Dist.] 5/9/13) The evidence established that D left a total of six messages over an approximately 10 month period. Only two of the messages were within a 30 day period, and both were about a driveway construction project. Court holds four other messages were too far apart to be considered part of the same episode, and concludes evidence was insufficient to support the verdict.

Note: You have to wonder why in the world a case like this was ever prosecuted. Six calls in 10 months cannot possibly meet anyone's definition of harassment.

Insufficient evidence – engaging in organized criminal activity – Lashley v. State, No. 14-12-0336-CR (Tex. App. - Houston [1st Dist] ) Officer saw three individuals jump over fence in apartment complex and apprehended them. One of them cooperated, and pointed out units where they had taken copper wiring, and pointed out wire that had been dropped on the ground. At trial the individual recanted, and testified for D, claiming he had no knowledge of the thefts. COA holds evidence was insufficient to establish guilt for engaging in organized criminal activity. Even if each entry was a separate crime that would only establish multiple crimes committed during a single criminal episode. COA does hold the evidence was sufficient to support the lesser include offense of theft.

            G. MISCELLANEOUS

Self-incrimination – community supervision – Dansby v. State, No. PD-0613-12 (Tex. Crim. App. - 5/8/13) D refused to answer questions about past sexual history during a sexual history polygraph that was administered as part of sex offender treatment program. He was eventually terminated from the program, based in large part on the failure to complete the sexual history polygraph. COA did not address the claim that he was discharged from the program because he refused to answer self-incriminating questions. CCA addresses the issue, and holds a defendant cannot be forced to confess  criminal behavior in any context without immunity.

Note: This is significant decision. Sexual history polygraphs are a requirement for all sex offender treatment programs. I anticipate their use is going to have to be modified, or there will need to be a grant of immunity that encompasses any admissions.

 Facebook messaging – Youkers v. State, No. 05-11-1407-CR (Tex. App. - Dallas, 5/13/13)  Trial judge was facebook friends with D's father – they both had run for an election at the same time. The father sent a facebook message asking for leniency, and judge responded that the message was in violation of the rules regarding ex parte contact and advised him to not send any further messages. On appeal, D claimed bias. COA holds the judge acted appropriately, and notes there is no prohibition against judges using social media.



 Harm Analysis - Davison v.State, No. PD-1236-12, (Tex. Crim. App. - 5/22/13) D was charged with burglary of a building (state jail felony) enhanced by three prior felony convictions. He  plead guilty, and court only admonished on the punishment range for a state jail felony. COA found error, but held it was harmless applying the non-constitutional standard of harm. CCA holds the court erred in failing to address his due process claim. However, court holds that D failed to establish a due process claim for the same reasons the COA found the error was harmless.

Egregious Harm – Gelinas v. State, No. PD-1522-11 (Tex. Crim. App. - 5/15/13) Officer stopped D for failing to signal a turn out of parking lot and not having a white light illuminating the license plate. Since there is no duty to signal out of  a parking lot, only valid basis for stop was whether there was a proper light. The facts were disputed and Court submitted an Art. 38.22 instruction; it was erroneous though, because it stated the exact opposite of what the law requires. D did not object, so review was for egregious harm. COA reversed, relying on its prior decision in Hutch v. State, 922 S.W.2d 166. CCA disavows holding in Hutch, and finds that D was not egregiously harmed.

Note: This decision produced six different opinions, so what it actually means is anyone's guess. Judge Keller questioned whether jurors even understand these instructions, and whether they should be given at all.

Preservation of error – Burt v. State, No. PD-1280-11 (Tex. Crim. App. - 4/17/13) D was charged with misapplication of fiduciary property, based on his operation of a Ponzi scheme. When he was sentenced, the court did not enter the amount of restitution, but instead told both parties they need to resolve that as soon as possible. A judgment was entered the following day, which included an order for restitution in excess of $590,000. D appealed arguing the restitution order should be vacated because it was not pronounced in open court. COA held issue was not preserved because it was not raised in the trial court. CCA reverses, holding D did not have an opportunity to object to the restitution order, and therefore any error was not waived.

Review of trial court decision – State v. Duran, No. PD-0771-12 (Tex. Crim. App. - 4/17/13) Trial court granted a motion to suppress. Court found officer was wrong in concluding  D had made an illegal left turn. There was also evidence that D briefly crossed the center line, but no evidence that officer observed that. Issue was whether court must defer to trial court findings that are ambigous when viewed piecemeal, but reasonable when viewed in their totality. Court holds it should use the same common sense approach used by magistrates in determining probable cause. Totality of the findings in his case support the judges decision.

Preserving error – Landers v. State, No. PD-1637-12 (Tex. Crim. App. - 7/3/13) Court ordered D to pay attorneys fees and costs of court appointed investigator. COA held D waived the right to complain by not making a timely request, objection or motion. CCA  holds motion for new trial was not required because complaint was not based on facts that were not in the record. CCA also holds objection was not necessary, since fees were not imposed in open court and therefore D had no opportunity to object.

Note: Judge Keller filed a concurring opinion explaining that motion for new trial was not appropriate because the challenge was not to the assessment of punishment. That question has not yet been decided by the Court.


 Laches – post conviction relief – Ex Parte Perez, No. AP-76,800 (Tex. Crim. App. - 5/8/13) D sought an out of time PDR for a conviction that was affirmed in 1992. State argued that D should be barred from obtaining relief under the doctrine of laches. CCA holds that its approach to laches has imposed an unreasonable burden on the State, and adopts a revised approach that incorporates all types of prejudice, and allows the court to consider the totality of circumstances.

            C. MISCELLANEOUS

Mandamus – cost of records In re Hermand Slaughter, Jr., No. 02-13-0122-CV (Tex. App. - Ft. Worth, 5/14/13) D attempted to obtain copies of the clerks and reporters records so he could prepare a writ of habeas corpus. Court reporter requested payment of $1,165, and D filed objecting offering to pay 10 cents a page, and proposing other alternatives. It was not ruled on so he filed mandamus. COA granted writ, and ordered trial court to rule on objections.

Ineffective assistance – Ex Parte Lahood, No. AP 76,873 and AP 76,874 (Tex. Crim. App. - 6/26/13) Court founds counsel's failure to follow up on issue of D's competency constitutes deficient performance. Medical records could have been easily obtained and would have supported a competency claim. Court however finds D was not prejudiced because there was not a reasonable probability that he would have been found incompetent.

Expunction – In re Stacy Smith, No. 12-12-0362-CV (Tex. App. - Tyler, 6/25/13) Trial court denied petition for expunction without conducting a hearing. Court holds that was error, since statute requires that court have a hearing.