Last updated 9/2/10
In an effort to keep abreast of all the latest
developments in current
What follows is a list of recently published cases wherein
the appellate courts actually reversed a conviction (or, in some instances,
affirmed a trial court’s granting of a motion to suppress). Please note that
the subsequent history of cases has not
been provided and no guarantee exists that any particular case it is still good
law. Likewise, statutory changes should always be considered in determining the
legitimacy of any court’s holding (especially the implementation of the new
harmless error rule at Tex.R.App.Proc. 44.2). Nevertheless, the list is a
fairly comprehensive guide of the most serious errors committed in criminal
prosecutions.
Accomplice Witness Rule, Matter of Law
Accomplice Witness Rule, Insufficient Corroboration
Aggravated Assault, Public Servant, Plain Clothes,
Mistake of Fact
Aggravated Assault, No allegation of recklessness
Aggravated Kidnapping, Restrain, Element of “Interfere
Substantially”
Alcohol, Providing to a Minor, Trespassing
Anhydrous Ammonia, Sufficiency
Arrest Warrants, Probable Cause, Attached Documents
Assault, Family Violence, Household
Batson, Calling Prosecutor as Witness
Bond, Appeal, Conditions, Internet Web Site Content
Bond, Appeal, Conditions, No Driving
Bond, Appeal, After Conviction is Reversed
Bond, Conditions, Child Sexual Abuse
Bond, Hearing, Defendant Testimony on Facts of Offense
Boot Camp, Suspension of Sentence, Court's Jurisdiction
Burglary of a Habitation, Insufficient Evidence
Capital Murder, Pregnant, Transferred Intent
Capital Murder, Insufficient Evidence, Underlying Offense
Charging Instrument, Amendment
Charging Instrument, Amendment vs. Abandonmnet
Charging Instrument, Culpable Mental State
Charging Instrument, Manner and Means
Charging Instrument, Recklessness
Child Pornography, Computer Stored Images, Statutory
Construction
Civil Disputes, Theft, Insufficient Evidence
Closing Argument, Accusing Defendant of Extraneous Acts
Not Admitted
Closing Argument, Accusing Defense Counsel of Making Up
Defense
Closing Argument, Accusing Witness for Defense of
Attempting to Bribe Victim
Closing Argument, Commenting on Defendant’s Failure to
Testify
Closing Argument, Commenting on Defendant's Post Arrest
Silence
Closing Argument, Commenting on Judge’s Desire
Closing Argument, DWI, Alcohol Concentration
Closing Argument, Inviting Jurors to Ignore Law
Closing Argument, Inviting Speculation on Facts not in
Evidence
Closing Argument, Parole Instruction
Closing Argument, Range of Punishment for Lesser Offenses
Closing Argument, Outside Record
Closing Argument, Referring to Defendant's Trial Demeanor
Closing Argument, Jeffrey Dahmer and Commenting on
Punishment Election
Closing Argument, Time Limitation
Collateral Estoppel, Motion to Revoke Probation
Community Supervision, Revocation, Inability to Pay
Community Supervision, Condition, Restitution, Secured
Creditor
Community Supervision, Conditions, Restitution, Special
Prosecutor
Community Supervision, Conditions, Reasonable
Relationship
Community Supervision, Condition. Vagueness, Sex Offense
Community Supervision, Conditions, When Begin, Appeal
Community Supervision, Dirty UA, Chain of Custody
Community Supervision, Findings of Fact and Conclusions
of Law
Community Supervision, Modification, Right to Counsel
Community Supervision, Revocation, Delay In Holding
Hearing
Community Supervision, Revocation, Delay In Filing
Petition
Community Supervision, Revocation, Due Diligence
Community Supervision, Revocation, Sex Offense Terms,
“Frequent”
Community Supervision, Revocation, New Conviction
Community Supervision, Revocation, “No Tolerance”
Community Supervision, Revocation, Proof of New Offense
Community Supervision, Revocation, Punishment Hearing
Community Supervision, Revocation, Sentencing, Credit for
Time Served
Community Supervision, Revocation, Time Barred
Community Supervision, Revocation, Withdrawal of Plea
Community Supervision, Shock Probation
Competencey, Motions to Revoke/Adjudicate
Confessions, Failure to Honor Counsel Request,
Uncontradicted Testimony
Confessions, Failure to Honor Right to Counsel
Confessions, Failure to Honor Right to End Questioning
Confessions, Miranda, Comment on Post Arrest Silence
Confessions, Officer’s Tricking or Lying
Confessions, Post Polygraph Interview
Confessions, Re-initiating Further Communication
Confessions, Right To Counsel, Sixth Amendment,
Adversarial Hearing
Confessions, Station House Questioning, Custody
Confessions, Station House Questioning, Custody,
Attenuation Doctrine
Confessions, Traffic Stop, Miranda
Confessions, Videotape, Warnings
Confessions, Voluntariness, Jury Instruction
Confessions, Waiver, "On Its Face"
Confidential Informant, Disclosure of Identity
Confrontation Clause, Crawford v. Washington
Confrontation Clause, In General
Counsel, Appointed, Substitute Before Punishment Phase
Counsel, Right to; Knowing Waiver
Counsel, Right to; Knowing Waiver; Revocation Proceeding
Counsel, Right to, Waiver, After Right To Counsel
Attached
Counsel, Right to; Withdrawal of Waiver
Court’s Charge, Counts v. Paragraphs, Unanimous Verdict
Criminal Instrument, Insufficient Evidence
Criminal Trespass, Pleading, Ownership, Insufficient
Evidence
Criminal Trespass, Real Estate Only
Cross Examination, Paid Informant
Cross-Examination, Restriction
Cross Examination, Restriction, Opened Door
Cross-Examination, Questioning on Post Arrest Silence
Culpable Mental State, Health & Safety Code
Deadly Conduct, Felony, Insufficient Evidence
Deadly Weapon Finding, Culpable Mental State
Deadly Weapon Finding, Insufficient Evidence
Deadly Weapon Finding, Insufficient Notice
Deadly Weapon Finding, No Jury Determination
Deadly Weapon Finding, Parties
DeGarmo Doctrine, Appealing Motion to Suppress
Delivery of Controlled Substance, Legally Insufficiency
Discovery, Exculpatory Evidence
Discovery, Withholding Evidence
Dismissal by Trial Court, Unusual Case
Disorderly Conduct, Shooting the Bird
Double Jeopardy, Acquittal of Higher Offense
Double Jeopardy, Aggravated Kidnapping, Aggravated
Assault
Double Jeopardy, Contempt in Injunction (Wacky)
Double Jeopardy, Delivery and Possession with Intent
Double Jeopardy, DWI Injuries and Reckless Assault
Double Jeopardy, Improper Acceptance of Non-Unanimous
Verdict
Double Jeopardy, Injury To A Child
Double Jeopardy, Manslaughter and Intoxication
Manslaughter
Double Jeopardy, Prosecutor's Reckless Cause of a
Mistrial
Double Jeopardy, Sexual Offenses
DWI, Attorney, Reference During Initial Stop, Rule 403
DWI, Charge, Breath Test Refusal
DWI, Charge, Combination of Drugs
DWI, Cross Examination, Quotas
DWI, Expert Testimony, Absorption Rate
DWI, Enhancement, Felony, Stipulate Prior Convictions
(Significant)
DWI, Extrapolation, Mata, Relevancy, Rule 403 Etc.
DWI, Failure to Maintain a Single Lane
DWI, Felony, Proof of Priors in Case in Chief
DWI, Felony, All Convictions Must be Proved (Significant)
DWI, Felony, Offense Date of Prior Convictions
(Significant – Old Law)
DWI, Felony, 10 Year Rule Under Amended Penal Code
DWI, Felony, Insufficient Proof of Prior Convictions
DWI, Felony, Stipulation to Priors
DWI, Videotape, Invoking Right to Counsel
DWI, Videotape, Invoking Right to Terminate Interview
DWLS, Effect of Failure to Pay Reinstatement Fee
DWLS, Final Underlying Conviction Required
Endangering a Child, Imminent Harm, Sufficiency
Escape, Element of
Custody or Arrest
Evading Arrest, Enhancement with Prior Evading
Evidence, Authenticating Audio Tapes
Evidence, Child Sexual Abuse, Videotape Testimony
Evidence, Hearsay, Backdoor Trick
Evidence, Hearsay, Business Records
Evidence, Hearsay, Co-Defendant's Statement/Statement
Against Interest
Evidence, Hearsay, Deceased's Victim Note
Evidence, Hearsay, Excited Utterance
Evidence, Hearsay, Letter to DA
Evidence, Hearsay, Medical Exception
Evidence, Hearsay, Prior Consistent Statement
Evidence, Hearsay, Search Warrant Affidavit
Evidence, Hearsay, Statement Against Interest
Evidence, Hearsay, Truth of Matter Asserted
Evidence, Open the Door, Hearsay
Evidence, Outcry
Testimony, Notice, Details
Evidence, Outcry Testimony, Not First Person
Evidence, Present Sense Impression, Narration on DWI Tape
Evidence, Rule 403,
Substantial Prejudice
Evidence, Sexual Assault, Medical Records Exception
Evidence, Sexual Assault, Victim’s Prior Threat of
Falsely Accuse 3P
Evidence, Sexual Assault, Victim's Prior Sexual Contact
Evidence, Sexual Assault, Victim's Prior Statement of 3P
Abuser
Evidence, State Estopped from Challenging
Experts, Court Appointed, Continuances
Experts, Court Appointed, Requesting
Experts, DPS Chemist, Relying on Report
Experts, Eyewitness Reliability
Experts, Gatekeeping Hearing, Suppression Hearings
Experts, Hypnotically Refreshed Testimony
Experts, Kelly Predicate In General
Experts, Methamphetamine Effect
Experts, Urinalysis, Probation Revocation
Expunction, Misdemeanors Pled in Bar
Extrajudicial Confession, Corroboration
Extraneous Offenses, Conduct of Third Parties
Extraneous Offenses, Election By State
Extraneous Offenses, "Opening the Door"
Extraneous Offenses, Prior Injuries in Shaken Baby
Syndrome Case
Extraneous Offenses, Rule 404 Notice
Extraneous Offenses, Rules 404 and 403 vs. art. 38.36 in
Murder Case
Extraneous Offenses, Rule 403, Drugs in Drug Cases
Extraneous Offenses, Sexual Offenses
Extraneous Offenses, Sexual Offenses, Notice
Extraneous Offenses, Sufficiency
Extraneous Offenses, Third Person, Relevancy
Failure to Identity, Not Under Arrest or Detention
Fifth Amendment, Speech Sample By Defendant, No Cross
Financial Responsibility, Proof Of
Forfeiture and Seizure, Civil, Service of Process
Forfeiture and Seizure, Excessive Fines Clause
Good Conduct Time, Sheriff’s Discretion
Guilty Plea, Mistrial, Withdrawal
Guilty Plea, Sufficient Evidence
Identification, Pre-Trial Photo, Taint
Immunity Agreements, Court Approval
Impeachment, Calling Witness For Purpose of Impeachment
Impeachment, Complaining Witness Qualifies as “Party
Opponent”
Impeachment, Hearsay Declarant, Rule 806
Impeachment, Pending Deferred Adjudication of Defendant,
403
Impeachment, Pending Deferred Adjudication of State's
Witness
Impeachment, Pled in Bar Cases
Impeachment, Prior Convictions vs. Prior Instances of
Misconduct
Impeachment, Prior Conviction, Successful Probation
Impeachment, Prior Conviction, Underlying Facts
Impeachment, Prior Conviction Too Prejudicial
Impeachment, Prior Conviction, Remoteness
Impeachment, Prior False Accusation, Sexual Abuse *
Impeachment, Prior Assault Convictions, Similarity
Indictment, Delay Under art. 32.01
Inducing Sexual Performance By A Child
Ineffective Assistance of Counsel (Multiple Cases)
Ineffective Assistance of Counsel, Punishment Phase
Injury to a Child, Intentional, Insufficient Evidence
Injury to a Child, Serious Bodily Injury, Omission,
Sufficiency of the Evidence
Injury to A Child, Serious Bodily Injury, Substantial
Risk Of Death
Injury to the Elderly, Insufficient Evidence of Age
Insanity, Factually Insufficient
Insufficient Evidence, Details of Indictment Not Proven
Insufficient Evidence, Fatal Variance Between Indictment
and Proof
Jurisdiction, Felony Court, Misdemeanor Offense
Juror, Disqualification, Recognizes Victim After Trial
Begins
Juror, Excused for Economic Reasons
Jury Charge, Commenting on Evidence
Jury Deliberations, Alternative
Jury Deliberations, "Decided By Lot"
Jury Deliberations, Outside Evidence
Jury Instructions, Conduct Before 17 Years Of Age By
Defendant
Jury Instructions, Illegally Obtained Evidence, art.
38.23(a)
Jury Instructions, Judicial Notice, HGN
Jury Instructions, Presumptions
Jury Instructions, Reasonable Doubt
Jury Instructions, Response to Note
Jury Instruction, Threats By Decedent, Murder Case
Jury Notes, Trial Court's Oral Response
Jury Qualifications, Related to Punishment Phase
Extraneous Offense Victim
Jury Selection, Range of Punishment
Jury, Verdict Less Than 12, “Disabled”
Juveniles, Pre Disposition Report, 5th Amendment
Juveniles, Revocation, Amended Motion After Term Expires
Jury, Waiver, "Substantial Right"
Lesser Included Offense, Jury Charge, Expansion of
Indictment
Lesser Included Offense, Reformation When Evidence
Insufficient on Greater Charge
Limitations, Tolling Due to Pending Indictment
Manufacturing Cont. Sub, Nazi Lab, Insufficient Evidence
Misapplication of Fiduciary Duty
Mistrial, Occurring During Punishment On Plea of Guilty
Mistrial, Racial Comment by State
Money Laundering, Insufficient Evidence
New Trial, Motion For, Appeal by State
New Trial, Motion For, Failure to Record Bench Conference
New Trial, Motion For, Hearing Requirement
New Trial, Motion for, Newly Discovered Evidence
Notice, Texas Rules of Evidence 404
Nunc Pro Tunc, Deadly Weapon Finding
Official Misconduct, Statute Unconstitutional as Applied
Open Pleas, Defendant Invoking 5th Amendment in
Punishment Phase
Organized Crime, "Combination"
Organized Crime, Drugs, Flawed Indictment
Organized Crime, Insufficient Evidence
Parties, Insufficient Evidence
Parties, Jury Charge, Application Paragraph
Parties, Jury Charges, Application Paragraph, Language
Error
Perjury, Insufficient Evidence
Plea Agreements, Court Imposes Deferred Adjudication
Plea Agreements, Court Is Bound Upon Acceptance
Plea Agreements, What Court Can Do If Defendant Fails To
Show For Sentencing
Plea Negotiations, Admissibility
Pleas, Failure to Admonish on Immigration Consequences
Pleas, Failure to Admonish on Sex Offender Registration
Pleas, Failure to Admonish on Range of Punishment
Admonishment, Constitutional Error
Pleas, Opportunity to Withdraw
Pleas, Involuntary, Interpreter
Pleas, Stipulation, No "Waiver and Consent"
Possession of a Controlled Substance
Possession of a Controlled Substance, Insufficient
Evidence, Affirmative Links
Possession of a Controlled Substance, Chemist Testing
Sample of All Bags
Possession of a Controlled Substance, Chemist Relying on
Other Chemist’s Report
Possession Weapon by Felon, Prior Probation Discharged Under 42.12 § 20(a)
Possession of Weapon by Felon, Stipulation to Prior
Conviction
Prohibited Substance in Correctional Facility
Punishment, Enhancement Allegations, Defendant’s Plea
Punishment, Enhancement Allegations, Drug Free Zone
Punishment, Enhancement Allegations, Finality
Punishment, Enhancement Allegations, Juvenile
Adjudications
Punishment, Enhancement Allegations, Notice
Punishment, Enhancement Allegations, Notice, Retrial
Punishment, Enhancement Allegations, Pleading
Punishment, Enhancement Allegations, State Jail
Punishment, Enhancement Allegation, Sequential, Finality
Punishment, Enhancement Allegations, Theft
Punishment, State Jail Felonies, Finality
Punishment, State Jail Felonies, Mandatory Probation
After MTA
Punishment Evidence, Deferred Adjudication
Punishment Evidence, Expert, Psychological
Punishment Evidence, Extraneous Offenses, Instruction on
Burden of Proof
Punishment Evidence, Extraneous Offenses, Instruction on
Criminal Responsibility
Punishment Evidence, Extraneous Offenses, Whether
Prosecuted
Punishment Evidence, Extraneous Offenses, Evidence of
Sentence
Punishment Evidence, Extraneous Offenses, Victim Impact
Punishment Evidence, Enhancement Paragraphs, Instruction
on Burden of Proof
Punishment Evidence, Group Association
Punishment Evidence, Mitigation, Physical Appearance of
Sex Assault Victim
Punishment Evidence, Notice of Extraneous
Punishment Evidence, Opinions of Defendant's "Safety
Net"
Punishment Evidence, Prior Judgements, Connecting to
Defendant
Punishment Evidence, Suitability for Probation,
Recidivism
Punishment Hearing, Election, Due Process
Resisting Arrest, Sufficiency of the Evidence
Restitution, Who Can Receive And What For
Retaliation, Insufficient Evidence
"Rule, The"; Burden to Establish Exemption
Sanity, Expert Examination, Failure to Provide Report
Scientific Evidence (Significant)
Search and Seizure, Arrest, “About to Escape”, art. 14.04
Search and Seizure, Arrest, “Suspicious Place” art. 14.03
Search and Seizure, Arrest Warrant, Justify Home Entry?
Search and Seizure, Authority, Bedroom of Another
Search and Seizure, Border Patrol
Search and Seizure, Collateral Estoppel
Search and Seizure, Community Caretaking Function
Search and Seizure, Consent, Extent of Consent
Search and Seizure, Consent to Search, Voluntary
Search and Seizure, Consent, Subsequent Search
Search and Seizure, Curtilage, Back Door
Search and Seizure, Exigent Circumstances
Search and Seizure, Expectation of Privacy
Search and Seizure, Illegal Act by Private Citizen, Art.
38.23
Search and Seizure, Jurisdiction for Arrests
Search and Seizure, Jurisdiction for Temporary Detentions
Search and Seizure, Probable Cause, DWI
Search and Seizure, Pretext Stop
Search and Seizure, Probable Cause, Considering Refusal
to Consent
Search and Seizure, Probable Cause, Drug Area
Search and Seizure, Probable Cause, Odor of Marijuana,
Residence
Search and Seizure, Probable Cause, Obstructing Highway
Search and Seizure, Probable Cause, Passenger
Search and Seizure, Probable Cause, Theft of Services,
Rent Car
Search and Seizure, Protective Sweep
Search and Seizure, Punishment Phase, Illegal Search,
Review Standard
Search and Seizure, Roadblocks
Search and Seizure, Strip Search
Search and Seizure, Suppression Hearing, Defendant’s
Limited Testimony
Search and Seizure, Suppression Hearing, Hearsay
Search and Seizure, Suppression Hearing, Uncontroverted
State's Evidence
Search and Seizure, Terry, Arrest Instead of Detention
Search and Seizure, Terry, Duration
Search and Seizure, Terry, Pat Down, No Fear for Officer's Safety
Search and Seizure, Terry, Pat Down, Plain Feel Doctrine
Search and Seizure, Terry, Pat Down, Scope
Search and Seizure, Terry, Stop, Anonymous Tip/Citizen
Tip
Search and Seizure, Terry, Stop, Detention vs. Casual
Encounter
Search and Seizure, Terry, Stop, Confidential Informant
Search and Seizure, Terry, Stop, Handcuffs
Search and Seizure, Terry, Stop, Flight
Search and Seizure, Terry, Stop, No “Reasonable
Suspicion” Crime Afoot
Search and Seizure, Terry, Stop, Vague Facts, Conclusory
Search and Seizure, Terry, Stop, Driving Too Slowly
Search and Seizure, Terry, Stop, Police Broadcast Tip
Search and Seizure, Terry, Stop, Not Signaling From
Private Parking Lot
Search ad Seizure,
Terry, Not Signaling While
Exiting Freeway
Search and Seizure, Terry, Stop, Smell of Alcohol
Search and Seizure, Terry, Stop, Window Tint
Search and Seizure, Terry, Seizure of an Object
Search and Seizure, Vehicles, Search Incident to An
Arrest
Search Warrant, Execution, Three Days
Search Warrant, Franks Hearing, False Statements
Search Warrant, General Statement
Search Warrant, Insufficient Description
Search Warrant, No Probable Cause
Search Warrant, Vehicles, Outside of Curtilage
Selective Prosecution, Equal Protection
Self-Defense, Instruction, Apparent Danger
Self Defense, Instruction, When Charged With Property
Offense
Self Defense, Instruction, Multiple Assailants
Self Defense, Evidence of Victim’s Violent Nature
Self-Defense, Force v. Deadly Force
Self-Representation, Admonishments
Self Representation, Right to Assert
Sentencing, Due Process, Judge’s Formula
Sentencing, Increase of Punishment on Remand, Vindictiveness
Sentencing, Stacking, Oral Pronouncement Controls Over
Written Judgment
Serious Bodily Injury, Insufficient Evidence
Severance, Multiple Defendants
Shock Probation, Reverting Back to Deferred
Simulating Legal Process, Insufficient Evidence
Speedy Trial, Constitutional Right
Speedy Trial, Art. 17.151, No Indictment
Speedy Trial, Art. 32.01, Indictment by Next Term of
Court
State Jail Felony, Credit for Prior County Jail Time
State Jail Felony, Enhancment as Habitual
State Jail Felony, Enhancement to Second Degree
State Jail Felony, Enhancement to Third Degree
State Jail Felony, Prior Conviction
Sudden Passion, Attempted Murder
Sudden Passion, Instruction Required
Tampering With Evidence, Legal Insufficiency
Tampering With Governmental Record
Tampering With VIN, Sufficiency of Evidence
Theft, Enhancement, Two or More Prior Theft Convictions
Theft, Indictment, Charging Theft "by
deception"
Trial, Defendant in Jail Clothes or Shackles
Trial, Due Process Right to Present a Defense, Hearsay
Not a Problem
Trial, Jurors Asking Questions
Trial, Witness, Invoking Fifth Amendment During Testiony
UCW, Defensive Instruction on “Traveling”
Value, Fair Market v. Replacement
Victim Impact Statement, Changing Sentence Thereafter
Victim Impact Statement, Time or Presentment
Voir Dire, Commitment Questions
Voir Dire, Failure of Trial Court to Allow Questioning on
Defensive Issue
Voir Dire, Hypotheticals, Committing Panel to Facts
Voir Dire, Individual Juror Questioning
Voir Dire, Range of Punishment, Strike for Cause
Voir Dire, Venire Person Comment, Mistrial
Voluntariness, Jury Instruction
Witness, Prosecutor Testifying As
Writs of Attachment, Denial of
Badillo v. State, 963 S.W.2d 854 (Tex.App. - San Antonio 1998). Indicted witnesses are accomplices as a matter law and the jury should so be instructed. Further, the court reversed this murder conviction and entered an acquittal finding insufficient evidence once the accomplice witness testimony was disregarded. The concurrence urges the legislature to abandon the rule altogether.
Howard v. State, 972 S.W.2d 121 (Tex.App. - Austin 1998). In this drug case, witness who had pled to a lesser included offense arising out of same transaction as Defendant's charge was an accomplice witness as a matter of law. Error for jury not to be charged on need for corroboration.
Rios v. State, 982 S.W.2d 558 (Tex.App. - San Antonio 1998). Automobile passenger could not be convicted for possession of marijuana when the only evidence to corroborate the driver's/accomplice's testimony was the Defendant being "merely present" and the accomplice "looking" at the defendant before agreeing to a consent to search.
Fernandez v. State, 989 S.W.2d 781 (Tex.App. - San Antonio 1998). No corroboration in robbery case.
Sestric v. State, 1 S.W.3d 921 (Tex.App. - Beaumont 1999). No corroboration in a burglary case.
Nolley v. State, 5 S.W.3d 850 (Tex.App. - Houston [14th Dist.] 1999). No corroboration in this aggravated robbery case. Other evidence that placed Defendant in the company of accomplice three hours before offense was insufficient to "connect" this defendant to the crime.
Wincott v. State, 59 S.W.3d 691 (
Reed v. State, 117 S.W.3d 260 (Tex.Crim.App. 2003). Even though aggravated assault can be committed intentionally, knowingly or recklessly, if the State does not allege reckless it cannot include that allegation in the court's charge.
Hines v. State, 40 S.W.3d 705 (
Phillips v. State, 109 S.W.3d 562 (
Cruz v. State, 122 S.W.3d 309 (Tex.App. - Houston[1st Dist] 2003). When the victim identified Defendant and a co-defendant, evidence that the co-defendant had an alibi should have been admitted.
Wootton v. State, 132 S.W.3d 80 (Tex.App. - Houston[14th
Dist] 2004). Note, this case was not
reversed but is the first case in
Pollock v. State, 145 S.W.3d 786 (Tex.App. - Eastland 2004). Defendant was indicted for possession of anhydrous ammonia in an unapproved container. Only evidence was that Defendant possessed the chemical in a container marked “LP Gas”. This, the court held, was insufficient (as it discussed a ton of federal regs about anhydrous).
Volosen v. State, 192 S.W.3d 597 (Tex.App. - Fort Worth 2006). Take a look at THSC § 822.013 which provides legal authority to injure or kill a dog in some circumstances.
Young v. State, 8 S.W.3d 656 (Tex.Crim.App. 2000). The so-called Helms rule is overturned. A Defendant may now appeal a pre-trial adverse ruling of a Motion to Suppress (and other due process violations) even if the Defendant subsequently pleads guilty with or without the benefit of a plea bargain.
Russell v. State, 33 S.W.3d 471 (
State v. Gutierrez, 112 S.W.3d 203 (
State v. Medrano, 987 S.W.2d 600 (Tex.App. - El Paso 1999). A pre-trial evidentiary ruling that hypnotically enhanced identification would not be admissible by the State because of its unreliability is not the equivalent of "suppressing evidence", thus, the State has no right to appeal the ruling under Rule 44.01. Update: Reversed at 67 S.W.3d 892 (Tex.Crim.App. 2002)
State v. Cowsert, 207 S.W.3d 347 (Tex.Crim.App. 2006). Once 15 days has passed from an adverse ruling on a Motion to Suppress, State cannot recreate right to appeal by filing Motion for Rehearing and appealing the ruling on same.
Boley v. State, 16 S.W.3d 95 (Tex.App. - Houston [1st Dist.] 2000). Affidavit failed to establish probable cause when the affidavit made no reference to documents attached to affidavit and record was unclear exactly what documents were attached.
Bufkin v. State, 179 S.W.3d 166 (Tex.App. - Houston[14th Dist] 2005). There was evidence that bite marks were from the day before the alleged incident during consensual sex. Instruction of consent defense should have been given. (Questionable decision). Update: CA affirmed at 207 S.W.3d 779 (Tex.Crim.App. 2006).
Miller v. State, 312 S.W.3d 209 (Tex.App - Houston[14th Dist.] 2010). Jury should have been instructed on consent to assault where there was some evidence that victim “kind of wanted [Defendant] to hit him.”
Archie v. State, 181 S.W.3d 428 (Tex.App. - Waco 2005). Check out the dissent for a very good argument that “household” does not include “a person who previously lived in a household” under Family Code § 71.006. Update: Rev’d on other grounds. 221 S.W.3d 695 (Tex.Crim.App. 2007)
Mixon v. State, 224 S.W.3d 206 (Tex.Crim.App. 2007) Communication is privileged when a prospective client consults with a lawyer even if the lawyer is not eventually retained.
Bausley v. State, 997 S.W.2d 313 (Tex.App. - Dallas 1999). When prosecutor strikes minority juror on the basis that another out of court prosecutor rated that juror as "bad" and has no personal knowledge why that juror was "bad", the out of court prosecutor may be called as a witness to explain why the juror was rated "bad".
Guzman v. State, 20 S.W.3d 237 (
Gibson v. State, 112 S.W.3d 323 (
Thomas v. State, 209 S.W.3d 268 (Tex.App. - Houston[1st Dist.] 2006). Wow, a Batson case in favor of the Defendant.
Greer v. State, 310 S.W.3d 11 (Tex.App - Dallas 2009). Wow, another one.
Wardlow v. State, 6 S.W.3d 786 (Tex. App. - Austin 1999). Removing two African Americans from the jury, one by agreement with the defense and one by preemptory strike, established a prima facie Batson case and hearing on the matter should have been held.
Read v. State, 959 S.W.2d 228 (Tex.App. - Fort Worth 1997). Felony DWI Defendant's bond amount pending appeal was reduced to $10,000 from $50,000.
Compian v. State, 7 S.W.3d 199 (Tex.App. - Houston [14th Dist.] 1999). Appeal bond in aggravated sexual assault of a child case was reduced to $50,000 from $150,000.
Cuellar v. State, 985 S.W.2d 656 (Tex.App. - Houston [14th Dist.] 1999). Court had no authority to require, as a condition of an appeal bond that (1) Defendant place a statement on his personal business web site that he had been convicted of an offense when the web site not a vehicle for the actions that gave rise to his convictions, that (2) the Defendant pay a sum certain into the registry of the court to be held as restitution for victims in the event the conviction was affirmed.
Anderer v. State, 7 S.W.3d 245 (Tex.App. - Houston [14th Dist.] 1999). Bond condition of no motor vehicle operation was invalid in this criminal negligent homicide case since it had nothing to do with assuring the Defendant's presence when conviction becomes final.
Ex Parte Tucker, 977 S.W.2d 713 (Tex.App. - Fort Worth 1998). For sexual offenses against a child victim, art. 14.40 of CCP provides the exclusive list of extra conditions of bond that may be imposed. Consequently, conditions such as "no unsupervised contact with minors under age 18" could not be imposed.
Ex Parte Homan, 963 S.W.2d 543 (Tex.App. -
Ex Parte Wood, 952 S.W.2d 41 (Tex.App. -
Ex Parte Emery, 970 S.W.2d 144 (Tex.App. -
Ex Parte Bogia, 56 S.W.3d 835 (Tex.App. -
Depena v. State, 56 S.W.3d 926 (
Ex Parte Sabur-Smith, 73 (Tex.App. -
Ex Parte Cuevas, 130 S.W.3d 148 (Tex.App. - El Paso 2003). Bond of $1,000,000 in organized crime case was excessive.
Ex Parte Henson, 131 S.W.3d 645 (Tex.App. - Texarkana 2004). Bond on three murder counts would be reduced from $750,000 to $500,000 a piece.
Ex Parte Davis, 147 S.W.3d 546 (Tex.App. - Waco 2004). Murder case involving two defendants. One bond was reduced from $1 million to $500,000 and the other was reduced to $750,000.
In Re Durst, 148 S.W.3d 496 (Tex.App. -
Golden v. State, 288 S.W.3d 516 (Tex.App. - Houston[1st Dist.] 2009) $200,000 bond each in PCS 1-4 and PCS 4-200 was excessive. Reduced to $75,000 and $50,000
In Re Hall, 989 S.W.2d 786 (Tex.App. -
Ex Parte Richardson, 70 S.W.3d 865 (Tex.Crim.App. 2002). State should have disclosed a diary kept by a police officer who was guarding the state's only witness when the diary was kept because of the officer's believe of witness untruthfulness.
Keeter v. State, 105 S.W.3d 137 (
Blevins v. State, 6 S.W.3d 566 (Tex. App. - Tyler 1999). Evidence was insufficient in this case even though (1) Defendant’s fingerprints were found on broken glass from burglarized home but it could not be determined if prints were from the “inside” portion of glass and (2) stolen property was found under abandoned home of Defendant’s stepfather.
Roberts v. State, 273 S.W.3d 322 (Tex.Crim.App. 2008). Defendant must know that lady is pregnant to be convicted of capital murder of more than one individual (although opinion primarily deals with concept of transferred intent in this setting.)
Brewer v. State, 126 S.W.3d 295 (
Curry v. State, 1 S.W.3d 175 (Tex.App. - El Paso 1999). State committed error by amending wording of indictment "after the start of trial" because action was not (1) abandonment of surplusage or (2) abandonment of alternative method alleged to commit same offense. (Case involved a charge of aggravated kidnapping which, of course, as a complicated element scheme).
Nichols v. State, 52
S.W.3d 501 (
Garza v. State, 50 S.W.3d 559 (Tex. App. - Houston[1st Dist.] 2001) Language in charging instrument describing manner and means cannot be abandoned as surplusage. Amendment is the proper procedure. Note: When court commits error by striking part of charging instrument language, sufficiency of the evidence should be reviewed by a hypothetically correct jury charge that includes the stricken language.
Sanchez v. State, 32 S.W.3d 687 (
Thompson v. State, 44 S.W.3d 171 (
Carrillo v. State, 962 S.W.2d 719 (Tex.App. - Houston [14th Dist.] 1998). State failed to follow the requirements of art. 21.25 when the original indictment was lost.
Carney v. State, 31 S.W.3d 392 (
State v. McCoy, 64 S.W.3d 90 (
Smith v. State, 309 S.W.3d 10 (Tex.Crim.App. 2010). Acts of recklessness has to be alleged in Indecent Exposure information.
Porter v. State, 996 S.W.2d 317 (Tex.App. - Austin 1999).Before the 1997 amendments, an image stored on a computer's hard drive did not fall within any definition of child pornography statute. Supplemental opinion at 65 S.W.3d 75.
Bokor v. State, 114 S.W.3d 558 (
Phares v. State, 301 S.W.3d 348 (Tex.App. - Beaumont 2009) Another good case that stresses the intent to unlawfully appropriate must be made at the time the money changes hands.
Reed v. State, 991 S.W.2d 354 (Tex.App. - Corpus Christi 1999). Prosecutor committed reversible error by implying the Defendant had committed the same act against other victims.
McMurrough v. State, 995 S.W.2d 944 (Tex.App. - Fort Worth 1999). In a UCW case, the State's argument of "When did the defense of traveling arise? After he hired his lawyer" was reversible error.
Gonzales v. State, 115 S.W.3d 278 (
Hall v. State, 13 S.W.3d 115 (
Trevino v. State, 979 S.W.2d 78 (Tex.App. - Austin 1998). Error for prosecutor to argue "Two people were there that night that know what happened, [the Defendant] and the [victim]".
Archie v. State, 181 S.W.3d 428 (Tex.App. - Waco 2005). Argument that “you heard no denial” from the Defendant about extraneous offenses was improper argument.
Cruz v. State, 224 S.W.3d 226 (Tex.App. - El Paso 2005). Prosecutor arguing self defense did not apply said “What has to happen is someone says ‘Yeah I committed this crime . . . I did this because I fear for my life” was improper comment.
Crocker v. State, 248 S.W.3d 299 (Tex.App. - Houston[1st Dist.] 2007). “You’ve heard from the State’s witnesses as to who was there [on that day]. And the State’s witnesses only,” was enough to get State reversed.
Archie v. State, 311 S.W.3d 556 (Tex.App - Waco 2009) DA asking jury if Defendant still heard victim scream and moved towards Defendant in courtroom when he did so, was a comment on failure to testify.
Bhakta v. State, 981 S.W.2d 293 (Tex.App. - San Antonio 1998). State's argument of "he didn't say anything at the scene" was error.
Wyborny v. State, 209 S.W.3d 285 (Tex.App. - Houston[1st Dist.] 2006) Cross examining Defendant on post arrest silence.
Harris v. State, 56 S.W.3d 52 (Tex.App. - Houston[14th Dist] 2001). Error for prosecutor to argue “Do you honestly think [the judge] really wants [the Defendant] on probation?”
Lemos v. State, 130 S.W.3d (Tex.App. - El Paso 2004). Court erred in refusing to allow defense counsel to argue that alcohol concentration was rising at time of the breath test even though there was no expert testimony regarding absorption and evaporation.
Peak v. State, 57 S.W.3d 14 (Tex.App. - Houston[14th Dist] 2001). Telling jury that if they find that agg sex assault occurred “knowingly” that they could ignore the “medical care” defense was reversible. (Court really comes down on prosecutor).
Ortiz v. State, 999 S.W.2d 600 (Tex.App. - Houston [14th Dist.] 1999). Prosecutor urging jury to consider what might have been on two pages of an exhibit that were excluded from evidence was reversible.
Freeman v. State, 985 S.W.2d 588 (Tex.App. - Beaumont 1999). It was error for the State to discuss range of punishment for lesser included offense of Indecency with a Child when indictment alleged Aggravated Sexual Assault, even if the lesser offense is submitted to the jury.
Esquivel v. State, 180 S.W.3d 689 (Tex.App. - Eastland 2005). Suggesting that sexual counseling services were available in prison was improper argument in punishment phase.
Brown v. State, 978 S.W.2d 708 (Tex.App. - Amarillo 1998). Argument (1) comparing the Defendant to Jeffrey Dahmer and (1) that the Defendant chose the jury to assess punishment instead of the judge because 'you don't have the information that he has at his fingertips to make a decision in this case" was error.
Dang v. State, 154 S.W.3d 616 (Tex.Crim.App. 2005). Error to
limit closing argument to 20 minutes in this capital murder case with a variety
of defensive issues. (Update: Error not harmless on remand to court of appeals.
183 S.W.3d 538 (Tex.App. -
Ex Parte Taylor, 101 S.W.3d 434 (Tex.Crim.App. 2002). DWI accident leaves two people dead. When Defendant is acquitted of intoxication manslaughter concerning victim #1 where state alleged alcohol only, State cannot prosecute Defendant for intoxication manslaughter of victim #2 even if indictment adds marijuana as the reason for intoxication.
Wafer v. State, 58 S.W.3d 138 (
State v. Stevens, 187 S.W.3d 565 (Tex.App. - Houston[14th Dist] 2006). When court #1 rules grants a motion to suppress the results of a DWI stop, that suppression order prevents the DWI from being used as the basis for an MTA. (Careful: See fn no. 2)
Greathouse v. State, 33 S.W.3d 455 (
Busby v. State, 951 S.W.2d 928 (Tex.App. - Austin 1997). A defendant on community supervision cannot be ordered to reimburse county for fees spent on a prosecutor pro tem (special prosecutor) since same is not authorized under art. 42.12 or as a cost of court.
Speth v. State, 965 S.W.2d (Tex.App. - Houston [14th Dist.] 1998). Defendant was on deferred adjudication probation for aggravated assault when indicted for Indecency With a Child. After an acquittal on the new offense, the Defendant's guilt was adjudicated and sentenced to regular/straight probation with new conditions of probation typically given those of a sexual offender. Held: new conditions were not reasonably related to aggravated assault. Update: Case overturned at 6 S.W.3d 530 (Tex.Crim.App. 1999) which held that a Defendant can affirmatively waive even unreasonable probation terms by entering into the probation contract without objection (even though this is not a plea agreement case).
McArthur v. State, 1 S.W.3d 323 (Tex.App. - Fort Worth 1999). It was improper delegation of authority to allow probation officer, at his discretion, to require sex offender to "notify all persons residing at your address, your neighbors, your employer, or other significant person that you are a registered sex offender".
Rickels v. State, 69 S.W.3d 775 (
Humphries v. State, 261 S.W.3d 144 (Tex.App. - San Antonio 2008) Probation does not begin until appeal is final and mandate issued.
Rodriguez v. State, 2 S.W.3d 744 (Tex.App. - Houston [14th Dist.] 1999). If I read this correctly, court holds there must be some evidence in the record that probation officer actually observed the Defendant provide UA sample.
McKelvy v. State, 5 S.W.3d 321 (Tex.App. - Houston [14th Dist.] 1999). Seven year delay from date of arrest until date of hearing was not justified.
Pino v. State, 189 S.W.3d 911 (Tex.App. - Texarkana 2006). A five year probation beginning on November 13, 1997 makes a MTR filed on November 13, 2002 one day too late.
Note: Due Diligence defense was statutorily modified in
2003.
Smith v. State, 120 S.W.3d 910 (
Nguyen v. State, 109 S.W.3d 820 (
Brecheisen v. State, 4 S.W.3d 761 (Tex.Crim.App. 1999). If the State does not exercise due diligence in having the Defendant arrested on an MTR, the remedy is to dismiss the MTR. The trial court cannot alleviate the harm by providing the Defendant credit for the time the capias was outstanding.
Moyers v. State, 948 S.W.2d 359 (Tex.App. - Amarillo 1997).
When a probationer moves out of state, entering a MTR warrant in TCIC will not
satisfy the "due diligence" requirement to have the defendant arrested
when the arrest does not occur for a period of four years. (Some evidence here
that the State knew of the defendant was no longer in
McIlvaine v. State, 960 S.W.2d 89 (Tex.App. - Houston [1st Dist.] 1997). MTR dismissed for State's failure to exercise due diligence in arresting Defendant (warrant pending for 13 months before arrest and one month after probationary term had expired).
Gutierrez v. State, 46 S.W.3d 394 (
Peacock v. State, 77 S.W.3d 285 (Tex.Crim.App. 2002). Court of Criminal Appeals allows "due diligence" doctrine is still alive and kicking live. (Arrest occurred 17 months after capias and 3 months after probationary period). Note: In Bawcom v. State, 78 S.W.3d 360 (Tex.Crim.App. 2002) the court held that actions taken by State before MTR was filed can be considered in the due diligence analysis.
Flores v. State, 102 S.W.3d 336 (
Ex Parte Brown, 158 S.W.3d 449 (Tex.Crim.App. 2005). Promising Defendant maximum sentence if revoked violates due process if judge follows through with that promise.
Willis v. State, 2 S.W.3d 297 (Tex.App. - Austin 1999). State failed to prove Defendant violated probation by committing new offense by offering a Revocation Judgement in a separate case that recited the defendant had committed a new offense (even if judgment specifically identifies offense committed and sets forth the date of the offense). Court simply says this is an improper method of proof.
Hardeman v. State, 971 S.W.2d 732 (Tex.App. - Houston [14th Dist.] 1998). After finding that defendant violated his probation, trial court should have conducted punishment hearing before sentencing Defendant. See also Pearson v. State, 974 S.W.2d 63 (Tex.App. - San Antonio 1998)(motion to adjudicate). Update: This law has been significantly gutted by Grammer v. State, 294 S.W.3d 182 (Tex.Crim.App. 2009)
Jimerson v. State, 957 S.W.2d 875 (Tex.App. - Texarkana 1997). In a State Jail Felony revocation case wherein the defendant receives the maximum sentence, it is unconstitutional for a statute to disallow credit for time spent in jail (1) between initial arrest and guilty plea or (2) between probation revocation warrant arrest and revocation. See Tex.Code.Crim.Proc. art. 42.12 §15(h)(2). see also Phillips v. State, 64 S.W.3d 458 (Tex. App. - Houston [1st Dist.] 2001, no pet.). Note: for regular state jail pleas, Tex. Code Crim. Proc. Ann. art. 42.12 § 15(h)(2) allows for a trial court to have discretion whether to grant credit against time served in a state jail felony facility for time confined between arrest and sentence.
Nesbit v. State, 175 S.W.3d 565 (Tex.App. - Dallas 2005) Ten year probation ended the day before the tenth anniversary so Motion to Revoke filed on anniversary date was one day too late.
Gutierrez v. State, 65 S.W.3d 362 (
Rice v. State, 971 S.W.2d 533 (Tex.App. - Dallas 1997). Trial court, if it desires to do so, must place Defendant on shock probation before the expiration of 180 days from the date of the original sentence. To do so after the deadline will render any subsequent revocation of that illegal probation void since the Defendant should be remanded to the IDTDCJ because his sentence was never suspended.
Ex Parte Potter, 21 S.W.3d 290 (Tex.Crim.App. 2000). A Defendant must be competent in order to take part in an extradition hearing, although a jury is not required to determine his competency.
McDaniel v. State, 72 S.W.3d 756 (
Durgan v. State, 240 S.W.3d 875 (Tex.Crim.App. 2007). Court of appeals had jurisdiction to consider merits of competency issue on appeal from Motion to Adjudicate.
Hatten v. State, 978 S.W.2d 608 (Tex.App. - Corpus Christi 1998). Although court properly stopped trial and held competency hearing outside presence of the jury, court erred when it failed to find "some" evidence supported claim of incompetency.
Reed v. State, 14 S.W.3d (Tex.App. - Houston [14th Dist.] 2000). Court erred in not holding competency hearing.
Jimenez v. State, 28 S.W.3d 702 (
McCarthy v. State, 65 S.W.3d 47 (Tex.Crim.App. 2001). Once the Defendant invokes his right to counsel, all questioning must cease. The fact that officer who subsequently interrogated the Defendant was unaware of the prior invocation is irrelevant.
Moran v. State, 171 S.W.3d 382 (Tex.App. - Austin 2005). Defendant invoked his right to counsel and officer then told him that was “fine” but he had already interviewed other witnesses. This prompted Defendant to give a statement. Held: Officer’s statement did not honor the right to remain silent. Update: Rev’d at 213 S.W.3d 917 (Tex.Crim.App. 2007).
Urias v. State, 104 S.W.3d 578 (
Simpson v. State, 227 S.W.3d 855 (Tex.App. - Houston[14th Dist] 2007). Defendant said he “did not want to talk about it” after Miranda warning. Questioning should have ceased.
State v. Gobert, 275 S.W.3d 888 (Tex.Crim.App. 2009). Rights were invoked with, “I don’t want to give up any right, though, if I don’t got no lawyer.”
Ramos v. State, 245 S.W.3d 410 (Tex.Crim.App. 2008). Statement of “[I] don’t want to talk about it” was sufficient enough to end questioning.
Wilson v. State, 311 S.W.3d 452 (Tex.Crim.App. 2010) Officer creating a violation of Tampering With Governmental Record by fabricating fingerprint evidence caused exclusion of subsequent confession.
Davidson v. State, 25 S.W.3d 183 (Tex.Crim.App. 2000). An
out of state confession, in order to be admissible, must satisfy the
Vega v. State, 32 S.W.3d 897 (
State v. Lacy, 80 S.W.3d 207 (
Cross v. State, 114 S.W.3d 92 (
Hargrove v. State, 162 S.W.3d 313 (Tex.App. - Fort Worth 2005). An appearance before a magistrate at a 15.17 hearing invokes the right to counsel.
Pecina v. State, 268 S.W.3d 561 (Tex.Crim.App. 2009). An
appearance before a magistrate at a 15.17 hearing invokes the right to
counsel. (Citing recent Supreme Court
case on the issue: Rothgery v.
In Re D.A.R., 73 S.W.3d 505 (
State v. Consaul, 960 S.W.2d 680 (Tex.App. - El Paso, 1997). Trial court's suppression of confession affirmed. Defendant was "in custody" during station house questioning even though not formally arrested and later released.
Vicioso v. State, 54 S.W.3d 104 (
Alford v. State, 22 S.W.3d 669 (
Resendez v. State, 256 S.W.3d 315 (Tex.App. - Houston[14th Dist] 2007). For videotape confessions, art. 38.22 requires those warnings appear on the videotape.
Vasquez v. State, 179 S.W.3d 646 (Tex.App. - Austin 2005). When evidence raises a question about voluntariness of a confession, Defendant is entitled to a jury instruction on same. Affirmed at 225 S.W.3d 541 (Tex.Crim.App. 2007)(And don’t need a conflict in the evidence to get the instruction.) See also Oursbourn v. State, 288 S.W.3d 65 (Tex.App. - Houston[1st Dist.] 2009)
Contreras v. State, 312 S.W.3d 566 (Tex.Crim.App. 2010) Threat to arrest Defendant’s wife if he did not confess was enough to raise issue of voluntariness and jury should have been instructed accordingly.
Williams v. State, 84 S.W.3d 243 (
Heard v. State, 995 S.W.2d 317 (Tex.App. - Corpus Christi 1999). Trial court erred in limiting questioning of detective regarding information provided by CI. Under Rule 508, a CI's identity may be required to be disclosed even if the CI was not present at time of offense.
Lary v. State, 15 S.W.3d 581 (
Brooks v. State, 132 S.W.3d 702 (Tex.App. - Dallas 2004). Confession of co-defendant violated confrontation clause under Crawford. Same: Hale v. State, 139 S.W.3d 418 (Tex.App. - Fort Worth 2004).
Lee v. State, 143 S.W.3d 565 (Tex.App. - Dallas 2004). Statement by co-defendant provided to police before he was arrested could not be used against defendant when co-Defendant not available to testify.
Wall v. State, 143 S.W.3d 846 (Tex.App. - Corpus Christi 2004) Victim’s statement to police at hospital was “testimonial” and required cross examination.
Russeau v. State, 171 S.W.3d 871 (Tex.Crim.App. 2005). Disciplinary reports and incident reports outlining Defendant misconduct while incarcerated violated Crawford.
Wall v. State, 184 S.W.3d 730 730 (Tex.Crim.App. 2006). Even if it would qualify as an excited utterance, statement of victim at hospital made to law enforcement officers was testimonial.
Gonzalez v. State, 195 S.W.3d 114 (Tex.Crim.App. 2006). Not
a reversal case but it’s important: The “forfeiture by wrongdoing” doctrine is
alive and well in
Mason v. State, 225 S.W.3d 902 (Tex.App. - Dallas 2007) Statements made at the scene by woman who called 911 for domestic violence were testimonial.
Scott v. State, 227 S.W.3d 670 (Tex.Crim.App. 2007). The
famous yogurt murder case out of
Zapata v. State, 232 S.W.3d 254 (Tex.App. - Houston[1st Dist.] 2007). Domestic assault case.
De La Paz v. State, 273 S.W.3d 671 (Tex.Crim.App. 2008). Burden of proof case: Once Defendant objects based on Crawford, State must establish that statement is not testimonial.
Langham v. State, 305 S.W.3d 568 (Tex.Crim.App. 2009) Cops testimony of what CI told him violated Crawford.
Romero v. State, 136 S.W.3d 680 (Tex.App. - Texarkana 2004). Witness who testified in disguise leaving only visible his ears, tops of cheeks, and bridge of nose violated Defendant’s right to confront witnesses.
Romero v. State, 173 S.W.3d 502 (Tex.Crim.App. 2005). Allowing witness to testify in disguise violated Confrontation Clause.
Deaton v. State, 948 S.W.2d 371 (Tex.App. - Beaumont 1997).
An oral motion for continuance (which is "equitable" as opposed to
"statutory" in nature), should have been granted when defendant's
expert was in the bathroom located in the courthouse. Update: I think the
concept of “equitable” continuances is now dead in light of
Brown v. State, 182 S.W.3d 427 (Tex.App. - Texarkana 2005). Judge appointment of new substitute counsel between guilt phase and punishment phase with extraordinary good cause was reversible error.
Hatten v. State, 32 S.W.3d 868 (
228 S.W.3d 246 (Tex.App. - Austin 2007). Defendant had been indicted and counsel appointed. Cops interrogation, even with Defendant’s waiver, would be suppressed since counsel was not present. (May not be good law anymore.)
Hughen v. State, 297 S.W.3d 330 (Tex.Crim.App. 2009) Not a reversal but the leading case on sixth amendment law. If the Defendant requests counsel at his art 15.17 hearing (magistration), the cops may still approach the Defendant an initiate interrogation with a valid waiver. (Note: If a Defendant asserts his 5th Amendment right during custodial interrogation, the police may NOT regarding-initiate interrogation.
Francis v. State, 36 S.W.3d 121 (Tex.Crim.App. 2000). Charge improperly combined two separate counts into one paragraph disjunctively thereby allowing a less than unanimous jury to convict on either Count A or Count B. (On remand, harm was found at 53 S.W.3d 685). Almost identical case: Clear v. State, 76 S.W.3d 622 (Tex. App. - Corpus Christi 2002). Identical juvenile case: In Re M.P., 126 S.W.3d 228 (Tex. App. - San Antonio 2003) See also Tyson v. State, 172 S.W.3d 172 (Tex.App. - Fort Worth 2005)(Sexual assault case where counts were submitted in disjunctive). Carty v. State, 178 S.W.3d 297 (Tex.App. - Houston[1st Dist.] 2005)(another sexual assault case). Ploeger v. State, 189 S.W.3d 799 (Tex.App. - Houston[1st Dist.] 2006)(Stalking case.) Mathonican v. State, 194 S.W.3d 59 (Tex.App. - Texarkana 2006)(sexual assault); Dolkart v. State, 197 S.W.3d 887 (Tex.App. - Dallas 2006)(aggravated assault). Stuhler v. State, 218 S.W.3d 706 (Tex.Crim.App. 2007)(injury to a child); Pizzo v. State, 235 S.W.3d 711 (Tex.Crim.App. 2007)(Indecency); Hines v. State, `269 S.W.3d 209 (Tex.App. - Texarkana 2008)(Indecency) But cf: You can’t have “stop action” prosecution (i.e. touching organ while in the process of penetrating cannot give rise to two distinct counts. See.e.g. Saldana v. State, 287 S.W.3d 43 (Tex.App. - Corpus Christi 2008).
Ngo v. State, 129 S.W.3d 198 (Tex.App. - Eastland 204). Jury charge allowed Defendant to be convicted of credit card abuse by three different ways pursuant to paragraphs in the indictment. However, the paragraphs actually alleged different types of credit card abuse, thus jury should have been required to vote unanimously on all three charges. Aff’d at 175 S.W.3d 738 (Tex.Crim.App. 2005).
Hisey v. State, 129 S.W.3d 649 (Tex.App. - Houston[1st Dist.] 2004). Error was committed when Defendant could have been found guilty of murder (a lesser included offense) by three different ways but charge did not require that a unanimous verdict take place as to the any of the three ways.
Huffman v. State, 267 S.W.3d 902 (Tex.Crim.App. 2008). Failure to stop and render aid statute simply gives alternative ways of committing the offense: failing to stop, failing to return, and failing to remain.
55 S.W.3d 74 (
Danzi v. State, 101 S.W.3d 786 (
Anthony v. State, 209 S.W.3d 296 (Tex.App. - Texarkana 2006) Unwritten policy that allows police the complete discretion as to who they can ban from a city park was unconstitutional.
Young v. State, 976 S.W.2d 771 (Tex.App. - Houston [1st Dist.] 1998). If state pleads the name of the owner of the property trespassed upon, proof of same must be offered including some testimony as to where the property line is.
Sarsfield v. State, 11 S.W.3d 326 (Tex. App. - Houston[14th Dist.] 1999). Defendant could not be convicted for failing to leave airliner since trespass statute only applies to realty. (But look at 1999 statutory amendment).
Stephens v. State, 59 S.W.3d 377 (Tex.App. - Houston[1st Dist] 2001). If State impeaches defense witness, defense can then bring out evidence that State has considered him credible by using him as informant.
Smith v. State, 156 S.W.3d 184 (Tex.App. - Amarillo 2005). Court erred in restricting cross-examination of witness who had relationship with third person who was awaiting sentencing.
McDaniel v. State, 3 S.W.3d 176 (Tex. App. - Fort Worth 1999). Trial court erred in restricting defense counsel from questioning witness about the fact that Defendant held large monetary judgment against him.
Fox v. State, 115 S.W.3d 550 (Tex.App. - Houston[14th Dist] 2002). In this agg sex assault case, Defendant should have been allowed to cross-examine victim's mother/his wife about her affair since it was consistent with Defendant's theory that she wanted to set him up.
Woodall v. State, 216 S.W.3d 530 (Tex.App. - Texarkana 2007). Error to not allow cross of technical supervisor on reliability of Intoxilyzer machine.
Hammer v. State, 311 S.W.3d 20 (Tex.App – San Antonio 2010). Error to not allow cross of alleged sexual assault victim’s assertions of multiple other allegations of sexual assault by others (some pretty outlandish.)
Veteto v. State, 8 S.W.3d (
Ex Parte Weise, 23 S.W.3d 449 (Tex.App. -
Reed v. State, 214 S.W.3d 626 (Tex.App. - Waco 2006) Statute making it a crime to discharge a firearm “at or in the direction of” a habitation cannot be violated by firing the gun from inside the home. Aff’d at 268 S.W.3d 615 (Tex.Crim.App. 2008)
Bailey v. State, 7 S.W.3d (Tex.App. - Corpus Christi 1999). This case seems to stray from some prior cases and holds that a deadly weapon finding must be supported with evidence that the Defendant intended the weapon to be used as a deadly weapon.
Rodriguez v. State, 31 S.W.3d 772 (
Adame v. State, 37 S.W.3d 141 (
Lee v. State, 51 S.W.3d 365 (
In Re S.B. 117 S.W.3d 443 (Tex. App. - Fort Worth 2003) Holding baseball bat 15 feet away not sufficient to support deadly weapon finding.
Robertson v. State, 137 S.W.3d 807 (Tex.App. - Waco 2004). A switchblade knife is not a deadly weapon per se. Update: Rev’d at 163 S.W.3d 730 (Tex.Crim.App. 2005)(this particular switchblade knife was deadly weapon by design).
Herring v. State, 160 S.W.3d 618 (Tex.App. - Waco 2005). Evidence insufficient when victim did not feel or see a knife even though he “believed” the Defendant had a knife.
Drichas v. State, 187 S.W.3d 161 (Tex.App. - Texarkana 2006) Evidence was factually insufficient in this evading with a vehicle case because the only testimony in the record was that there was “some traffic” on the road during the evading. Update, on remand, court continues to find evidence insufficient. 219 S.W.3d 471 (Tex.App. - Texarkana 2007).
Stewart v. State, 198 S.W.3d 60 (Tex.App. - Fort Worth 2006). Knife taken during burglary and seen by the victim not enough to be a deadly weapon.
Perez v. State, 216 S.W.3d 855 (Tex.App. - Corpus Christi 2006) Aquarium was not used or exhibited as a deadly weapon.
Torres v. State, 233 S.W.3d 26 (Tex.App. - Houston[1st Dist.] 2007). Evidence insufficient for deadly weapon finding when Defendant was found guilty as a party and no evidence indicated he knew co-defendants would exhibit weapons.
Rivera v. State, 271 S.W.3d 301 (Tex.App. - San Antonio 2008) Odd case where knife that caused cut wounds was found factually insufficient but not legally insufficient as a deadly weapon.
Sanders v. State, 963 S.W.2d 184 (Tex.App. - Corpus Chrisit 1998). Deadly weapon issue should not have been submitted when the State failed to provide notice in this case involving burglary by "attempt to commit and committed the felony of Aggravated Assault".
Patterson v. State, 138 S.W.3d 643 (Tex.App. - Dallas 2004). Surprise: Receiving notice of State’s intent to seek deadly weapon finding 20 minutes before voir dire is insufficient.
Edwards v. State, 21 S.W.3d 625 (
Patterson v. State, 950 S.W.2d 196 (Tex.App. - Dallas 1997).
Deadly weapon finding in judgment was deleted on appeal when the jury was not
submitted a special issue on the matter but only found the defendant guilty as
“charged in the indictment”. Since the indictment consisted of two paragraphs,
one which alleged a deadly weapon per se while the other did not, there was no express determination by the jury that the
defendant utilized a deadly weapon. Accord:
Grant v. State, 33 S.W.3d 875 (
Dorsey v. State, 117 S.W.3d 332 (
Howard v. State, 966 S.W.2d 821 (Tex.App. - Austin 1998).
Since jury charge allowed Defendant to be convicted as a party and since no
special issue was submitted asking whether the Defendant knew the co-Defendant
would use or exhibit a deadly weapon, the trial court's finding of a deadly
weapon must be deleted. Accord:
Blanson v. State, 107 S.W.3d 103 (
Leday v. State, 983 S.W.2d 713 (Tex.Crim.App. 1998). The DeGarmo Doctrine which stood for the proposition that a defendant's admission of guilt in the punishment phase waives all trial errors is dead. Court holds that such an admission does not prevent judicial review of trial court's motion to suppress ruling
Verduzco v. State, 24 S.W.3d 384 (Tex.App. - Houston [1st Dist.] 2000). No brainer case. When only issue is one of “actual transfer”, there must be some evidence that the person alleged to have received the cocaine actually touched it.
Ex Parte Perales, 215 S.W.3d 418 (Tex.Crim.App. 2007). A mother cannot deliver a controlled substance to her unborn child.
Stephens v. State, 269 S.W.3d 178 (Tex.App. - Texarkana 2008, pet. ref’d). State failed to prove “constructive delivery” when there was no proof that the dope would be transferred to a third person. Accord: Mihnovich v. State, 301 S.W.3d 354 (Tex.App. - Beaumont 2009).
Guyton v. State, 271 S.W.3d 773 (Tex.App. - Waco 2008) Insufficient evidence in this possession with intent to deliver case.
Little v. State, 971 S.W.2d 729 (Tex.App. - Dallas 1998). Evidence that state's chemist lost supporting documentation regarding blood-alcohol test should have been disclosed even though chemist was "confident" in results that he had "on the computer".
Oprean v. State, 201 S.W.3d 724 (Tex.App. - 2006). State willfully failed to turn over video requiring exclusion.
State v. Mungia, 76 S.W.3d 570 (
Coggin v. State, 123 S.W.3d 82 (
Windom v. State, 961 S.W.2d 267 (Tex.App. - Houston [1st. Dist.] 1997). Based upon art. 37.14, a defendant indicted for aggravated robbery but, pursuant to a plea agreement, is found guilty of the lesser offense of robbery, may, upon the granting of a motion for new trial, only be reprosecuted (1) for robbery and (2) only upon a new or amended indictment. [Note: Case reversed by Texas Court of Criminal Appeals on May 20, 1998, no. 909-97].
Girdy v. State, 213 S.W.3d 315 (Tex.Crim.App. 2006). Aggravated assault was lesser included offense of aggravated kidnapping.
State v.
Lopez v. State, 80 S.W.3d 624 (Tex. App. - Fort Worth 2002) aff'd at 108 S.W.3d 293 (Tex.Crim.App. 2003).. A Defendant cannot be punished for delivery of a controlled substance and possession with intent to deliver when the same dope is involved in each. Same result: 104 S.W.3d 199 (Tex. App. - Austin 2003)
Burke v. State, 6 S.W.3d 312 (Tex.App. - Fort Worth 1999). Defendant cannot be convicted of intoxication assault and reckless aggravated assault arising out of same accident with same victim. Update: Rev'd at 28 S.W.3d 545 (Tex.Crim.App. 2000)
Ex Parte Aviles, 78 S.W.3d 677 (
Villanueva v. State, 227 S.W.3d 744 (Tex.Crim.App. 2007). Can’t have two punishments for injury to a child by act and injury to a child by omission.
Harris v. State, 34 S.W.3d 609 (
Ex Parte Fierro, 79 S.W.3d 54 (Tex.Crim.App. 2002). After jury was empanelled and sworn, a juror disclosed that he was the cousin of the Defendant. The court erroneously believed the juror was disqualified for being with in the third degree of consanguinity, excused him, and then called a mistrial over the Defendant's objections. Further prosecution, the court held, was now barred.
Maydon v. State, 141 S.W.3d 851 (Tex.App. - Corpus Christi 2004). No manifest necessity existed to declare mistrial based upon defense attorney’s questioning of witness.
Update: All of the below cases are now in question due to Ex Parte Lewis, 219 S.W.3d 335 (Tex.Crim.App. 2007) which overruled Bauder.
971 S.W.2d 553 (Tex.App. -
State v. Cabrera, 24 S.W.3d 528 (
Ex Parte Fife, 49 S.W.3d 35 (
Mistrial granted sua sponte by court after prosecutor violated The Rule. Great discussion of Bauder and issue of whether Defendant consented to mistrial.
Ex Parte Wheeler, 146 S.W.3d 238 (Tex.App. - Fort Worth 2004). In manslaughter case, jeopardy barred reprosecution after prosecutor asked witness if she knew insurance company had found Defendant at fault (in violation of motion in limine).
Hutchins v. State, 992 S.W.2d 629 (Tex.App. - Austin 1999). Defendant could not be convicted of Indecency with a Child by exposure and Aggravated Sexual Assault when the act of Indecency occurs as part of the act of the Aggravated Sexual Assault by penetration. Accord: DeMoss v. State, 12 S.W.3d 553 (Tex. App. - San Antonio 1999). See also Elder v. State, 132 S.W.3d 20 (Tex.App. - Fort Worth 2004).(When jeopardy attached on specific incident of Indecency, Defendant could not subsequently be prosecuted of greater offense of Agg Sex Assault).
Evans v. State, 299 S.W.3d 138 (Tex.Crim.App. 2009). Double jeopardy prevented convictions for Aggravated Sexual Assault and Indecency With A Child by Contact.
Guevara v. State, 191 S.W.3d 203 (Tex.App. - San Antonio 2003). Spouse, without more, has no legal duty to see that husband or wife is not murdered.
Miller v. State, 36 S.W.3d 503 (Tex.Crim.App. 2001). When Defendant was assaulted by friend after undercover drug deal for failing to obtain money from undercover cop, this evidence should have been admitted to corroborate her defense of duress, to-wit: that she was forced into making drug deal.
Hernandez v. State, 191 S.W.3d 370 (Tex.App. - Waco 2006). Trial court erred in excluding evidence offered by Defendant that his family would be hurt if he didn’t complete drug deal.
Lajoie v. State, 237 S.W.3d 345 (Tex.App. - Fort Worth 2007). Buried in this preservation of error case, is a holding that a Defendant mentioning his lawyer during DWI initial contact was inadmissible under 403.
Badgett v. State, 42 S.W.3d 136 (Tex.Crim.App. 2001).
Mandatory taking of blood under §724.012 requires officer to believe that the
accident was a result of the offense.
Mere existence of an accident is not enough. Rev'd on remand at 79 S.W.3d 581
(Tex.App. -
State v. Neesley, 196 S.W.3d 356 (Tex.App. - Houston[1st Dist.] 2006). Under the mandatory blood taking statute, officers are only allowed to take one sample, not multiple samples. Update: Rev’d at 239 S.W.3d 780 (Tex.Crim.App. 2007)(“specimen” means a “usable sample”).
State v. Laird, 38 S.W.3d 707 (
Rodriguez v. State, 18 S.W.3d 228 (Tex.Crim.App. 2000) on remand at 31 S.W.3d 736. Error for jury charge to allow for conviction “by reason of the introduction of a combination of unknown drugs and alcohol into his body” when the information alleged only “alcohol”. (Not a “susceptibility” charge)
Otto v. State, 211 S.W.3d 359 (Tex.App. - San Antonio). Error when Information alleged only alcohol but court gave a susceptibility charge AND a charge that allowed for conviction based upon combination theory. (Pet. Granted).
Murphy v. State, 44 S.W.3d 656 (
Alexander v. State, 949 S.W.2d 772 (Tex.App. - Dallas 1997, no pet. hist). In a DWI case, the trial court erred in excluding cross examination testimony of arresting officer regarding a departmental directive requiring a daily quota of DWI arrests in order to “do outside employment” or “even volunteer work”.
Rivera v. State, 957 S.W.2d 636 (Tex.App. - Corpus Christi 1997). Prior DWIs before 9/1/95 could not be used under the general enhancement statute but were limited to enhancing DWIs only. (However, the court noted that new §49.09(f) leaves open the possibility that a felony DWI could be further enhanced by previous felony DWIs so long as those felony DWIs were not used elsewhere in the indictment.)
Rodriguez v. State, 31 S.W.3d 359 (
Howard v. State, 137 S.W.3d 282, (Tex.App.-Fort Worth 2004)., Due to a legislative change, a felony DWI case now requires that the two “priors” be within 10 years of one another.
Ex Parte Roemer, 215 S.W.3d 887 (Tex.Crim.App. 2007). A pre-1994 “Involuntary Manslaughter” conviction cannot be used to enhance a DWI-First to a third degree.
Morales v. State, 32 S.W.3d 862 (Tex.Crim.App. 2000). The Court doesn’t say that a defense expert on alcohol absorption in a non-breath test is admissible, but it does remand the case to the Court of Appeals to further detail why they think the expert testimony was admissible.
Tamez v. State, 11 S.W.3d 198 (Tex.Crim.App. 2000). If the Defendant stipulates to two prior DWI conviction in a felony DWI case, the State may read two of the enhancement DWIs to the jury when it reads the indictment (regardless of how many priors were pled).
Mata v. State, 46 S.W.3d 902 (Tex.Crim.App. 2001). In some
circumstances, an expert may not have sufficient information to justify an
opinion as to the breath-alcohol concentration at the time of driving based, in
part, on the concentration at the time of the Intoxilyzer 5000 test. Followed:
Owens v.State, 135 S.W.3d 302 (Tex.App. -
Stewart v. State, 103 S.W.3d 483 ((Tex. App. - San Antonio 2003, pet. granted): Huge case if it holds up. Breath test results are irrelevant and should not be admitted if expert cannot extrapolate. Update: Reversed (evidence is relevant but court does not address a 403 objection) See also State v. Mechler, 123 S.W.3d 449 (Tex.App. - Houston[14th Dist] 2003)(reversing a 403 ruling by trial judge).Update: PDR opinion was issued in that case as well.
Bagheri v. State, 119 S.W.3d 755 (Tex.Crim.App. 2003). Court erred in admitting retrograde evidence in violation of Mata. (Does not go so far as to say that breath test should not have been admitted).
State v. Franco, 180 S.W.3d 219 (Tex.App. - San Antonio 2005). Here’s a case where the BT results, without retrograde extrapolation, was held to be more prejudicial than relevant – a violation of Rule 403.
Hernandez v. State, 983 S.W.2d 867 (Tex.App. - Austin 1998). A single instance of crossing
a lane dividing line by 18 to 24 inches, into a lane traveling in the same
direction, when the movement is not show to be unsafe or dangerous is not a
violation of Texas Transportation Code § 545.060(a) nor a reasonable suspicion
that same was violated. Followed: State
v. Cerny, 28 S.W.3d 796 (Tex. App. - Corpus Christi 2000)(driving facts seem
worse but court ultimately concludes weaving was “within his own lane”). See
also Tarvin v. State, 972 S.W.2d 910 (Tex. App. - Waco 1998, pet. ref’d).. Bass v. State, 64
S.W.3d 646 (Tex. App. - Texarkana
2001)(officer testified there was no unsafe movement). Eichler v. State, 117
S.W.3d 897 (Tex.App. - Houston[14th Dist] 2003)(Single swerve); Fowler v.
State, 266 S.W.3d 498 (Tex.App. - Fort
Worth 2008)(Crossing into same direction lane by tires length one time and
touching white line twice when officer said it was not unsafe to do so).State
v. Huddleston, 164 S.W.3d 711 (Tex.App. -
Austin 2005)(crosses fog line five times over six miles); Curtis v.
State, 209 S.W.3d 688 (Tex.App. -
Texarkana 2006)(two over fog line and once over divider line – into lane
going same direction - over a quarter mile but with no testimony is was done
unsafely – case provides good survey of all cases BUT Rev’d on issue of
reasonable suspicion of DWI at 238 S.W.3d 376 (Tex.Crim.App. 2007).. Cf:
Ehrhart v. State, 9 S.W.3d 929 (
State v. Arriaga, 5 S.W.3d 804 (Tex.App. - San Antonio 1999). DWI stop not justified when officer testified he saw Defendant weaving within a lane between "two and seven times over a one and a half mile" distance.
State v. Tarvin 972 S.W.2d 910 (Tex.App. - Waco 1998). Weaving within a lane of traffic and even going "over" the right-hand shoulder line, without more, does not justify a Terry stop.
State v. Wallett, 31 S.W.3d 329 (
For a list of cases that are favorable to the State by distinguishing Hernandez v. State 983 S.W.2d 867, see the concurrence in Cook v. State, 63 S.W.3d 924 (Tex.App. - Houston[14th Dist] 2002).
Barfield v. State, 999 S.W.2d 23 (Tex.App. - Houston [14th Dist.] 1999). The requirement that the State prove the two prior convictions at the guilt-not guilty stage of the trial still exists even though DWI statutes have be recodified in the Penal Code. In this case, the State failed to offer that proof (and then, much to the chagrin of every other DA in the State, tried to convince the court that the prior DWIs were no longer jurisdictional). Note: Rev’d on appeal at 63 S.W.3d 446 (Tex.Crim.App. 2001) (since this was a bench trial, bifurcation of the trial was inappropriate so evidence presented at the imaginary “punishment phase” could be considered in a sufficiency of the evidence review).
Jiminez v. State, 981 S.W.2d 393 (Tex.App. -
Renshaw v. State, 981 S.W.2d 464 (Tex.App. - Texarkana 1998, pet. ref’d). Since at least
one of the prior convictions for DWI must have been committed within 10 years of the primary offense, the date of
offense of the prior convictions is an element of the offense that must be proved.
The fact that the conviction dates are within 10 years is of no significance.
Accord: Weaver v. State, 56 S.W.3d 896 (
Uriega v. State, 136 S.W.3d 258 (Tex.App. - San Antonio 2004). The 1991 amendments to §49.09(e) changed the enhancement rules for felony DWI. Now, the fact that there is a least one DWI within the last ten years since the date of the new offense is irrelevant. Instead, first look at the date of the oldest DWI alleged as an enhancement and then “look forward” ten years to determine if there the other prior is within that time frame. Accord: Getts v. State, 156 S.W.3d 593 (Tex.App. - Tyler 2003) aff’d 155 S.W.3d 153 (Tex.Crim.App. 2005). .
Zimmer v. State, 989 S.W.2d 48 (Tex.App. - San Antonio 1999, pet. ref’d).). State failed to prove that the individual named in the prior DWI judgment was the defendant at trial.
Martin v. State, 179 S.W.3d 685 (Tex.App. - Beaumont 2005). This is not a reversal but is helpful for the defense: If the Defendant stipulates to the two priors, then the issue is withdrawn from the jury and no evidence need be admitted and no instruction to the jury regarding the two priors is necessary.
Note: For a great summary of the current law and all collateral Tamaz issues, see Martin v. State, 200 S.W.3d 635 (Tex.Crim.App. 2006).
Baker v. State, 52 S.W.3d 882 (
Hernandez v. State, 109 S.W.3d 491 (Tex.Crim.App. 2003). I think this case means that if the Defendant offers to stipulate to the two priors the state is prevented from putting the judgments into evidence but the stipulation can go before the jury.
Herring v. State, 147 S.W.3d 390 (Tex.Crim.App. 2004). Concurring opinion is important: Does the law require the indictment to be read to the jury even if there is a stipulation? “this point remains undecided”.
O’Connell v. State, 17 S.W.3d 746 (
Amador v. State, 242 S.W.3d 95 (Tex.App. - Beaumont 2007). You don’t see this very often: No probable cause to arrest for DWI. Update: And it eventually was reversed. 275 S.W.3d 872 (Tex.Crim.App. 2003) 2009).
DPS v. Allocca, 301 S.W.3d 364 (Tex.App. - Austin 2009) Wow. If the only proof is sleeping in a running car (with no admission of recent driving) there is not sufficient evidence of probable cause to arrest for DWI – even in an ALR case.
Torres v. State, 182 S.W.3d 899 (Tex.Crim.App. 2005). Odd case. Probable cause did not exist when trooper called to the scene to investigate a one car accident, two deputies tell the trooper that Defendant is “very intoxicated”, but not one other piece of evidence is admitted during suppression hearing by state.
State v. Nelson, 228 S.W.3d 899 (Tex.App. - Austin 2007). Not a bad case for suppressing a DWI arrest for lack of probable cause when alcohol is not involved and the officer is not a DRE.
Fowler v. State, 65 S.W.3d 116 (
State v. Woehst, 175 S.W.3d 329 (Tex.App. - Houston[1st Dist.] 2004). Breath test refusal should have been suppressed when officer incorrectly advised Defendant that license would be suspended for not less than 90 days instead of 180 days. (Dissent has a huge Erdman discussion).
Opp v. State, 36 S.W.3d 158 (
Loy v. State, 982 S.W.2d 616 (Tex.App. - Houston [14th Dist.] 1998). Defendant invoking right to counsel on videotape is inadmissible and required reversal.
Cooper v. State, 961 S.W.2d 222 (Tex.App. - Houston [1st. Dist] 1997). Invocation of DWI defendant's Fifth Amendment right to terminate interview should not broadcast to jury via audiotape. Court of Criminal Appeals Hardie decision is not limited to invoking right to counsel on audiotape.
Allen v. State, 11 S.W.3d 474 (
Jones v. State, 21 S.W.3d 639 (
Millslagle v. State, 81 S.W.3d 895 (
Torres v. State, 980 S.W.2d 873 (Tex.App. - San Antonio 1998). Undercover officer who recruited a reluctant defendant to buy dope on his behalf was entrapped.
Calton v. State, 132 S.W.3d 29 (Tex.App. - Fort Worth 2004). If the State wishes to prosecute for the third degree offense of Evading With a Vehicle with a prior conviction for evading (PC 38.04(b)(2)), the State must prove the prior conviction in the guilt-not guilt phase. Aff’d 176 S.W.3d 231 (Tex.Crim.App. 2005).
Angleton v. State, 955 S.W.2d 655 (Tex.App. - Houston [14th Dist.] 1997). State did not authenticate audiotape found in defendant’s brother’s briefcase which appeared to be a conversation between defendant and the brother plotting a murder. Update: Case reversed at 971 S.W.2d 65 (Tex.Crim.App. 1998)
Melgar v. State, 236 S.W.3d 302 (Tex.App. - Houston[1st Dist.] 2007). Great character evidence case where court erred in this kidnapping case in not allowing five defense witnesses testify that defendant was “trusted, honest, and non-violent.”
Torres v. State, 33 S.W.3d 252 (Tex.Crim.App. 2000). Art 38.071 which allows videotaped statement of child to be admissible requires that child be admonished about truthfulness before, and not at end, of statement.
Important: Watson v. State, 204 S.W.3d 404 (Tex.Crim.App. 2006) Overrules Zuniga.
Watson v. State, 160 S.W.3d 627 (Tex.App. - Waco 2005). A factual insufficiency case where they held insufficient proof on element of intent to commit sexual assault. (You have to read the dissent – it’s gold). (Is this the above Watson case?)
Lancon v. State, 220 S.W.3d 57 (Tex.App. - San Antonion 2006). Murder case. Update: Rev’d at 253 S.W.3d 699 (Tex.Crim.App. 2008).
Burns v. State, 958 S.W.2d 483 (Tex.App. - Houston [14th Dist.] 1997). Evidence was factually insufficient to convict defendant of the felony offense of bail jumping (which requires that he had "jumped bond" on a felony offense). Evidence revealed Defendant was actually charged with attempted burglary of a building, a Class A misdemeanor, despite the fact the face of bond referred to the offense as a "felony".
Johnson v. State, 978 S.W.2d 703 (Tex.App. - Corpus Christi 1998). Victim in sexual assault case who testified that she was "positive" but not "100% positive" that the defendant assaulted her was factually insufficient evidence to establish identity even with some corroborating evidence. Aff’d 1915-98 (Tex.Crim.App. 2000)
Perkins v. State, 65 S.W.3d 98 (
Goodman v. State 5 S.W.3d 891 (Tex.App. - Houston [14th Dist.] 1999). You don't see this very often: evidence was factually insufficient to establish element of intent to injure in this injury to a child case. Update: It didn’t' last long, case rev'd at 66 S.W.3d 283 (Tex.Crim.App. 2001)
Nguyen v. State, 54 S.W.3d 49 (
Valle v. State, 223 S.W.3d 538 (Tex.App. - Amarillo 2006) Evidence factually insufficient in this marijuana possession case.
Dietz v. State, 123 S.W.3d 528 (
Thompson v. State, 981 S.W.2d 319 (Tex.App. - Houston [14th Dist.] 1998). This is actually an ineffective assistance case, but is notable for it's treatment of the backdoor hearsay trick (i.e. "Based upon that conversation, what did you do next) which, the court ruled, is the equivalent of hearsay.
West v. State, 124 S.W.3d 732 (Tex.App. - Houston[1st Dist] 2003). State failed to establish element that the records were "regularly" maintained.
Zarychta v. State, 961 S.W.2d 455 (Tex.App. - Houston [1st. Dist.] 1997). Co-defendant's confession inculpating Defendant was not admissible under Rule 803(24).
Muttoni v. State, 25 S.W.3d 300 (
Mendez v. State, 56 S.W.3d 880 (
Lester v State, 120 S.W.3d 897 (Tex. App. - Texarkana 2003). Court erred in not admitting statement of third person (who was not a co-defendant) when that third person took responsibility for crime.
Barnum v. State, 7 S.W.3d 782 (Tex.App. - Amarillo 1999). A deceased victim's note that she believed the Defendant was going to kill her for insurance proceeds did not meet a hearsay exception.
Aguilera v. State, 75 S.W.3d 60 (
Hardy v. State, 71 S.W.3d 535 (
Wright v. State, 154 S.W.3d 235 (Tex.App. - Texarkana 2005). Sexual abuse victim’s statement to “forensic interviewer” do not qualify under medical exception unless there is evidence that victim knew importance of being truthful.
Hammons v. State, 221 S.W.3d 720 (Tex.App. - San Antonio 2007). State failed to lay proper predicate in order to get in hearsay of child victim. Update: Rev’d at 239 S.W.3d 798 (Tex.Crim.App. 2007)(Dangerous precedent: almost any cross examination of IP will lead to admissibility of prior consistent statements.)
Ortiz v. State, 999 S.W.2d 600 (Tex.App. - Houston [14th Dist.] 1999). Even a search warrant that has been certified as a public record is still inadmissible if it contains hearsay.
Walter v. State, 267 S.W.3d 883 (Tex.Crim.App. 2008) The high court gives a definitive explanation of this rule.
Morin v. State, 960 S.W.2d 132 (Tex.App. - Corpus Christi 1997). Defendant's name (as a potential suspect) communicated to an officer by a third person is hearsay under the facts of this case. Court distinguishes those cases where such information is not used to prove the truth of the matter asserted but instead used to justify an officer's actions that have been challenged.
Pena v. State, 226 S.W.3d 634 (Tex.App. - Waco 2007) Best defense case ever for what happens when State loses evidence (in this case, marijuana. Update: Reversed at 285 S.W.3d 459 (Tex.Crim.App. 2009)(error not preserved)
Eby v. State, 165 S.W.3d 723 (Tex.App. - San Antonio 2005). In a murder case, evidence offered for “motive” that the Defendant was beneficiary of insurance policy and that victim was having affair is irrelevant unless there is proof the Defendant was aware of those facts
Daniels v. State, 25 S.W.3d 893 (Tex.App. - Houston [14th Dist.] 2000). Even when the Defendant opens the door to otherwise inadmissible bad acts, those bad acts must still be proven by competent evidence and not via hearsay.
Gay v. State, 981 S.W.2d 864 (Tex.App. - Houston [14th Dist.] 1998). Outcry notice (art. 38.072) was not sufficiently detailed.
Brown v. State, 189 S.W.3d 382 (Tex.App. - Texarkana 2006). Self explanatory.
Wright v. State, 154 S.W.3d 235 (Tex.App. - Texarkana 2005). Evidence that Defendant took a polygraph, even if results are not admitted, is error.
Fischer v. State, 207 S.W.3d 846 (Tex.App. - Houston[14th Dist] 2006). Officer’s narration on video during FSTs was not a present sense impression.
Reese v. State, 33 S.W.3d 238 (Tex.Crim.App. 2000). Photo of murder victim in casket holding fetus of child she was pregnant with at time of her murder was unfairly prejudicial.
Reyes v. State, 69 S.W.3d 725 (
Booker v. State, 103 S.W.3d 521 (
Russell v. State, 113 S.W.3d 530 (Tex. App. - Fort Worth 2003) Evidence of extraneous offense that involved burglary, robbery, sexual assault, and murder was overly prejudicial in this capital murder case.
Thrift v. State, 134 S.W.3d 475 (Tex.App. - Waco 2004). Photos of nude teenage males found in defendant’s home were overly prejudicial in this and indecency with a child case. (Update: Reversed at 176 S.W.3d 221 (Tex.Crim.App. 2005).
Erazo v. State, 144 S.W.3d 487 (Tex.Crim.App. 2004). Photo of victim’s unborn child was more prejudicial than probative.
Powell v. State, 189 S.W.3d 285 (Tex.Crim.App. 2006). Facts that Defendant was on parole and gun was found by car after a felony evading arrest offense were more prejudicial than probative.
Casey v. State, 160 S.W.3d 218 (Tex.App. - Austin 2003). In a date rape drug case, extraneous photos of the Defendant and his friends crazy sexual activities unrelated to the assault were inadmissible. Update: Rev’d at 215 S.W.3d 870 (Tex.Crim.App. 2007).
Billodeau v. State, 277 S.W.3d 34 (Tex.Crim.App. 2009) Evidence of alleged victim’s threat to false accuse others of sexual abuse, even if threats occurred after the alleged offense, were admissible.
Hammer v. State, 296 S.W.3d 555 (Tex.Crim.App. 2009). Comprehensive discussion of when prior false allegations of sexual abuse are admissible.
Miles v. State, 61 S.W.3d 682 (Tex.App. - Houston[1st Dist] 2001). Once state brings in medical evidence to prove sexual assault, Defendant is entitled to rebut that evidence with evidence that medical evidence could be explained by victim's prior sexual experience.
Kesterson v. State, 997 S.W.2d 290 (Tex.App. - Dallas 1999). Defendant should have been allowed to cross examine State's witness on whether child victim, who was mildly retarded, had identified another man as having sexually assaulted her. The "Rape Sheild Law" of Rule 412 does not prevent such testimony in this case. [Court treats the child's statement as accusing someone in addition to Defendant of assaulting her. Defensive theory being that she was confused as to which man committed the act.].
Arroyo v. State, 117 S.W.3d 795 (Tex.Crim.App. 2003). Once State provides document in discovery process, it cannot later object on grounds contrary to their prior position. (i.e. providing Defendant's criminal record prevents State from objecting that the record is not that of the Defendant).
Scott v. State, 55 S.W.3d 593 (Tex.Crim.App. 2001). Legislative change that allows a previously discharged deferred adjudication probation to be used as an enhancement allegation for a new offense violates the ex post facto clause. Followed: Nolan v. State, 102 S.W.3d 231 (Tex.App. - Houston[14th Dist] 2003).
Gagliardo v. State, 78 S.W.3d 469 (
Munoz v. State, 133 S.W.3d 836 (Tex.App. - El Paso 2004). Previous successfully completed deferred adjudication for assault-family violence cannot be used for enhancement when enhancement statute was amended after adjudication was deferred.
Schutz v. State, 998 S.W.2d 903 (Tex.App. - Houston [1st Dist.] 1999). State's expert committed reversible error when he gave a direct opinion on the truthfulness of child's testimony about sexual abuse.
Vela v. State, 159 S.W.3d 172 (Tex.App. - Corpus Christi 2004). Trial court erred in not allowing defense nurse expert to testify. Update: Rev’d at 209 S.W.3d 128 (Tex.Crim.App. 2006).
Aguilera v. State, 75 S.W.3d 60 (
Lighteard v. State, 982 S.W.2d 532 (Tex.App. - San Antonio 1998). An indigent defendant who raises an insanity defense is entitled to a court appointed expert and a motion for continuaces for such purposes should have, in this case, been granted.
Williams v. State, 958 S.W.2d 186 (Tex.Crim.App. 1997). A
defendant's motion for a court appointed expert per Ake v.
Weatherred v. State, 963 S.W.2d 115 (Tex.App. - Beaumont 1998). Trial court erred in disallowing testimony of expert on eyewitness reliability. (Good case discussing predicate for expert testimony). Update: On remand again: 985 S.W.2d 234.
Combo v. State, 6 S.W.3d 319 (
Hall v. State, 297 S.W.3d 294 (Tex.Crim.App. 2009) Probably of limited use: A full blown Kelly hearing is not required at a Motion to Suppress, but if the State is relying upon novel scientific evidence (in this case the LIDAR speeding detection), there must be some evidence of its reliability in the record.
Soliz v. State, 961 S.W.2d 545 (Tex.App. - San Antonio 1997). Trustworthiness of victim's hypnotically refreshed testimony was not established. (Great case discussing predicate when hypnosis testimony is to be used).
Perez v. State, 25 S.W.3d 830 (Tex.App. - Houston [1st Dist.] 2000). Court erred in allowing State to present rebuttal expert on issue of “child abuse accommodation syndrome”. Most of the voir dire of the expert was reprinted and then the court discussed the Kelly factors. Very good stuff.
Stovall v. State, 140 S.W.3d 713 (Tex.App. - Tyler 2004). Although HGN has been found to be scientifically reliable and State can rely upon the Emerson case to establish two of the three Kelly prongs, the same does not apply for VGN and expert testimony was required for all three prongs.
Acevedo v. State, 255 S.W.3d 162 (Tex.App. - San Antonio 2008). What Mata was to DWI, this case is an expert’s testimony regarding the probable effects of methamphetamine on a particular Defendant.
Hernandez v. State, 55 S.W.3d 701 (
Salazar v. State, 31 S.W.3d 726 (
Castaldo v. State, 32 S.W.3d 413 (
Farr v. State, 130 S.W.3d 343 (Tex.App. - Houston[14th
Dist] 2004). When State alleges one act in
indictment but multiple acts are introduced into evidence (in this case, acts
of sexual assault) , State must elect which act it will rely upon for a
conviction if requested by defense. Error is, furthermore, constitutional
error. See also Marsh v. State, 140
S.W.3d 895 (Tex.App. - Houston[14th Dist]
2004). See also
Welch v. State, 990 S.W.2d 876 (Tex.App. - Beaumont 1999). In a prisoner on prisoner assault case, court erred in not allowing defendant to impeach complaining witness with extraneous offenses when witness testified he followed the rules of TDCJ, Defendant had no reason to fear him, and that he did not have a reputation for violence.
Wheeler v. State, 988 S.W.2d 363 (Tex.App. - Beaumont 1999). In child sexual abuse case, CPS worker called by defense testimony that she did not feel need to remove defendant's children from Defendant's home did not create such a false impression as to open the door for the admission of extraneous offenses. Update: Rev'd at 67 S.W.3d 879 (Tex.Crim.App. 2002).
Otero v. State, 988 S.W.2d 457 (Tex.App. - Houston [1st Dist.] 1999). In this DWI case, defendant did not open door to extraneous DWIs when he offered and had admitted 100+ page medical record, one page represented falsely that the Defendant had no prior DWI convictions, defense counsel realized existence of the page before it was shown to jury, and Defendant attempted to withdraw the document.
Roberts v. State, 29 S.W.3d 596 (Tex.App. - Houston [1st Dist.] 2000). State cannot use extraneous offenses in rebuttal if the State was the party that “opened the door” via cross examination.
George v. State, 959 S.W.2d 378 (Tex.App. - Beaumont 1998). Autopsy report which made reference to baby's pre-offense broken ribs was inadmissible under Rule 403 and on the basis that insufficient/no evidence existed to demonstrate that the Defendant caused those injuries.
Webb v. State, 36 S.W.3d (
Smith v. State, 5 S.W.3d 673 (Tex.Crim.App. 1999). The evidentiary "rule" in art. 38.36 (which uses broad language like "all relevant facts and circumstances") of the Texas Code of Criminal Procedure is still limited by Rule 404 and Rule 403 of the Texas Rules of Evidence.
Hankton v. State, 23 S.W.3d 540 (Tex.App. - Houston [1st Dist.] 2000). Although evidence of Defendant past narcotics activity was relevant under Rule 404 to show intent to deliver in this case, its admission was unfairly prejudicial under Rule 403.
Carter v. State, 145 S.W.3d 702 (Tex.App. - Dallas 2004). Cocaine found in home where Defendant was arrested was not admissible in case where Defendant was charged with delivering cocaine from that house two weeks earlier. (Lots of facts).
DeLeon v. State, 77 S.W.3d 300 (
Fox v. State, 115 S.W.3d 550 (Tex.App. - Houston[14th Dist] 2002). In this agg sex assault case, the "doctrine of chances" should have allowed the Defendant to introduce evidence that two other girls had made similar allegations in an effort to "set him up".
Powell v. State, 137 S.W.3d 84 (Tex.App. - Tyler 2000). Evidence of six other “victims” being sexually assaulted by Defendant was clear violation of 404(b).
Page v. State, 170 S.W.3d 829 (Tex.App. - Corpus Christi 2005). Extraneous offenses in this impersonating police officer/sexual assault case were not similar enough to be relevant for “identity”. Update: Rev’d at 213 S.W.3d 332 (Tex.Crim.App. 2006).
Daggett v. State, 187 S.W.3d 444 (Tex.Crim.App. 2005). Extraneous evidence of a second victim (who was, like the victim, a waitress in the Defendant’s restaurant) did not constitute a “common scheme or plan” under 404(b).
Abbott v. State, 196 S.W.3d 334 (Tex.App. - 2006) Merely asking the question in the punishment phase, without proof, whether Defendant had abused a third person should have given rise to mistrial.
Bass v. State, 222 S.W.3d 571 (Tex.App. - Houston[14th Dist] 2007). Trial court erred in allowing extraneous offense evidence of crimes against persons other than victim alleged in indictment. Update: Rev’d at 270 S.W.3d 587 (Tex.Crim.App. 2008)
Lopez v. State, 288 S.W.3d 148 (Tex.App. - Corpus Christi 2009) Proof of homosexual relationship with prior boyfriend in a sexual assault case was inadmissible.
Hayden v. State, 13 S.W.3d 69 (
Fischer v. State, 235 S.W.3d 470 (Tex.App. - San Antonio 2007). Doesn’t come up often, but evidence was insufficient to prove Defendant committed the extraneous offense of theft that was admitted in this murder case.
Williams v. State, 27 S.W.3d 599 (
Quick v. State, 999 S.W.2d 79 (Tex.App. - Houston [14th Dist.] 1999). Defendant who opens door of his home and gives false name to officer who was there to arrest him pursuant to a warrant could not be convicted for Failure to Identify because he was not yet detained or in custody.
Williams v. State, 116 S.W.3d 788 (Tex.Crim.App. 2003). Court erred in not allowing Defendant to provide a sample of his speech unless he subjected himself to cross examination.
Sanchez v. State, (Tex.App. - Houston[1st Dist.] 2004). An officer asking for proof of “insurance” and nothing more is insufficient to establish failure to provide proof of financial responsibility under Transportation Code § 601.053
Ortiz v. State, 24 S.W.3d 603 (
One 1996 Dodge Truck v. State, 122 S.W.3d 422 (
Macias v. State, 959 S.W.2d 332 (Tex.App. - Houston [14th Dist.]) & Galvez v. State, 962 S.W.2d 203 (Tex.App. - Austin 1998). Evidence of Defendant's gang membership was irrelevant and inadmissible in guilt/not guilt phase.
Jackson v. State, 314 S.W.3d 118 (Tex.App - Houston[1st Dist.] 2010). Evidence of gang related offenses that Defendant did not take part in violated Rule 403.
Jones v. State, 176 S.W.3d 47 (Tex.App. - Houston[1st Dist.] 2004). Judge, who orders Defendant to serve county jail time, cannot mandate that it be served “day for day”.
Mason v. State, 290 S.W.3d 498 (Tex.App. - Amarillo 2009) Allowing police officer to question eye witness in grand jury room required reversal of this capital murder conviction.
Huseman v. State, 17 S.W.3d 704 (Tex. App. - Amarillo 1999). When defendant enters guilty plea and elects jury to assess punishment but a mistrial is declared during the punishment trial, the Defendant is placed back in his original position and is allowed, thus, to withdraw his guilty plea.
Menefee v. State, 287 S.W.3d 9 (Tex.Crim.App. 2009). You don’t see this much anymore: There has to be some evidence in the record to support the guilty plea pursuant to Texas Code of Criminal Procedure art. 1.15.
Ex Parte Schmidt, 109 S.W.3d 480 (Tex.Crim.App. 2003). Art. 11.09 is available to those Defendant not incarcerated. (I.e. A Defendant charged with Felony Theft With Two Enhancements who challenges one of the previous convictions by habeas).
Scott v. State, 298 S.W.3d 264 (Tex.App. - San Antonio 2009, pet. granted) Subsections 4 and 7 or §42.07(a) are unconstitutionally vague on their face.
In Re Boyd, 58 S.W.3d 134 (Tex.Crim.App. 2001). Old statute. Any affirmative finding of motivation of hate crime must be based on a jury finding proven beyond a reasonable doubt.
State v. Zascavage, 216 S.W.3d 495 (Tex.App. - Fort Worth 2007). Section 37.182(a)(3) of Education Code was unconstitutional.
Loserth v. State, 985 S.W.2d 536 (Tex.App. - San Antonio 1998). You don't see this very often: Pre-trial identification was tainted when eyewitnesses was shown only one photo which, of course, was that of the defendant.
Smith v. State, 70 S.W.3d 848 (Tex.Crim.App. 2002). If a case is dismissed pursuant to an immunity agreement, the dismissal order need not reference the immunity deal. So long as the court was aware of the reasons for the dismissal, future prosecution will be barred.
Hughes v. State, 4 S.W.3d 1 (Tex.Crim.App. 1999). Rule 607 does not prohibit the State from calling a witness solely for the purposes of impeachment. However, as here, Rule 403 will oftentimes prohibit the impeachment testimony if it would otherwise be inadmissible.
Willover v. State, 38 S.W.3d 672 (
Enriquez v. State, 56 S.W.3d 596 (
Jones v. State, 83 S.W.3d 386 (
Lopez v. State, 253 S.W.3d 680 (Tex.Crim.App. 2008). A case that has been pled in bar under PC §12.45 is not a final conviction for impeachment purposes.
James v. State, 102 S.W.3d 162 (
Haskins v. State, 960 S.W.2d 207 (Tex.App. - Corpus Christi 1997). Defense was improperly prevented from rehabilitating defendant who had been impeached with a prior out of state DWI conviction. Evidence that out of state DWI law did not require finding of "driving" to support DWI conviction should have been admitted.
Hernandez v. State, 976 S.W.2d 753 (Tex.App. - Houston [14th Dist.] 1998). Conviction older than 10 years was not admissible despite the facts that other misdemeanors had been committed in the interim. Only interim felonies and misdemeanors involving moral turpitude can "tack" onto an older conviction to make it admissible.
Winegarner v. State, 188 S.W.3d 379 (Tex.App. - Dallas 2006) Complainant could be impeached with a deferred adjudication judgment that was fourteen years old when that witness created a false impression about her criminal history. Update: Rev’d at 235 S.W.3d 787 (Tex.Crim.App. 2007).
Lopez v. State, 989 S.W.2d 402 (Tex.App. - San Antonio 1999). Even though Rule of Evidence 608(b) prevents impeachment with a prior instance of conduct, this limitation must give way to Confrontation Clause and a complaining witness of sexual abuse may be impeached with a prior false allegation of abuse. Rev'd at 18 S.W.3d 220 but on remand court says defense not given an opportunity to impeach. 61 S.W.3d 547. and rev’d again 86 S.W.3d 228 (Tex.Crim.App. 2002).
State v. Seidel, 2 S.W.3d 524 (Tex.App. - San Antonio 1999). When a trial court enters an order dismissing a prosecution for failure of an indictment to be timely filed and the order erroneously states that the dismissal is with "prejudice", the State must appeal that order or prosecution is forever barred.
Ex Parte Martin, 33 S.W.3d 843 (
Ex Parte Mann, 34 S.W.3d 716 (
State v. Moff, 154 S.W.3d 599 (Tex.Crim.App. 2004). In this theft by fiduciary case, indictment did not provide adequate notice when it did not allege which transactions involving money and credit cards were allegedly illegal.
Scott v. State, 173 S.W.3d 856 (Tex.App. - Texarkana 2005). Insufficient evidence on the element of “inducement”
Young v. State, 957 S.W.2d 923 (Tex.App. - Texarkana 1997). Defense lawyer ineffective for failing to request “necessity” instruction in this case that involved attempted murder while the Defendant was being “arrested” by a private citizen.
Phillips v. State, 964 S.W.2d 735 (Tex.App. - Waco 1998). Defense counsel was ineffective for failing to file motion to quash indictment that alleged prior DWI convictions as both elements of primary offense and as enhancement paragraphs. (Update: Reversed at 992 S.W.2d 491 (Tex.Crim.App. 1999)).
Mitchell v. State, 974 S.W.2d 161 (Tex.App. - San Antonio 1998). Counsel was ineffective for allowing his mentally challenged Defendant to appear during voir dire with the same distinctive T-shirt ("Cameron Elementary") he was wearing while committing a robbery which was captured on videotape. Update: Rev'd by Court of Criminal Appeals for failing to show prejudice. 989 S.W.2d 747 (Tex.Crim.App. 1999). Now reversed again by CA. 23 S.W.3d 582 (Tex. App. - San Antonio 2000)
Brown v. State, 974 S.W.2d 289 (Tex.App. - San Antonio 1998). Failure to object to extraneous drug offenses in murder case was ineffective.)
Garcia v, Statem 979 S.W.2d 809 (Tex.App. -
Melton v. State, 987 S.W.2d 72 (Tex.App. - Dallas 1998). Telling the defendant, who claims to have no memory of the crime due to a drinking binge, that there was a videotape of the offense when in fact none existed, is ineffective assistance even if the defendant pleads guilty to the offense
Perrero v. State, 990 S.W.2d 896 (Tex.App. - El Paso 1999). Counsel was ineffective for failing to properly prepare defendant to testify without opening door to extraneous offenses.
Bone v. State, 12 S.W.3d 521 (Tex. App. - San Antonio 1999). Generally ineffective all around in this felony DWI case.
Young v. State 10 S.W.3d 705 (Tex. App. - Texarkana 1999). Failure to request a defensive instruction of self defense was ineffective assistance.
Stone v. State, 17
S.W.3d 348 (
Ramirez v. State, 13 S.W.3d 382 (
Atkins v. State, 26 S.W.3d 580 (Tex.Crim.App. - Beaumont 2000). Failure to relay plea offer to Defendant.
Mallet v. State, 28 S.W.3d 603 (
Paz v. State, 28 S.W.3d 674 (
Torres v. State, 39 S.W.3d 631 (
Ex Parte Varelas, 45 S.W.3d 627 (Tex.Crim.App. 2201). Failure to request limiting instruction and on the burden of proof for extraneous offenses.
Turner v. State, 49 S.W.3d 461 (Tex. App. - Fort Worth 2001) Failure to relay that plea offer had a deadline.
Mares v. State, 52 S.W.3d 886 (
Woods v. State, 59 S.W.3d 833 (
Jaubert v. State, 65 S.W.3d 73 (
Ramirez v. State, 65 S.W.3d 156 (
Rylander v. State, 75 S.W.3d 119 (
State v. Williams, 83 S.W.3d 371 (
Goodspeed v. State, 120 S.W.3d 408 (
Storr v. State, 126 S.W.3d 647 (Tex.App. - Houston[14th Dist] 2004). Failure to request instruction on voluntary safe release of victim in this kidnapping case.
Johnson v. State, 172 S.W.3d 6 (Tex.App. - Austin 2005). Not seeking the discovery of a video that counsel listened to on the first day of trial and did not object to its admissibility or move for a continuance was ineffective assistance of counsel.
Ex Parte Briggs, 187 S.W.3d 458 (Tex.Crim.App. 2005). When the only issue is how a child died and the sole reason that medical professionals were not retained was that the Defendant could not afford them (and counsel did not take one of three options), counsel was ineffective.
Robertson v. State, 187 S.W.3d 475 (Tex.Crim.App. 2006). Counsel elicitation of testimony from Defendant that he had already been incarcerated twice before (when those convictions were not admissible for impeachment), was ineffective assistance. See also 214 S.W.3d 665.
Morales v. State, 217 S.W.3d 731 (Tex.App. - El Paso 2007). Counsel was ineffective for not preserving error when court improperly overruled his challenge for cause of prospective juror. Update Rev’d 253 S.W.3d 686 (Tex.Crim.App. 2008)(juror was not disqualified because he was assistant DA so not ineffective in failing to preserve error.)
Wright v. State, 223 S.W.3d 36 (Tex.App. - Houston[1st Dist.] 2006). Failure to look at investigators notes in sexual abuse of child case.
Fuller v. State, 224 S.W.3d 823 (Tex.App. - Tyler 2007). Failing to object to lay opinion from sexual assault victim’s eighth grade teacher that victim was credible and truthful.
Wood v. State, 260 S.W.3d 146 (Tex.App. - Houston[1st Dist.] 2008). Failing to object to State reading enhancement paragraph in DWI-2nd case.
Aldrich v. State, 296 S.W.3d 225 (Tex.App. - Fort Worth 2009). Multiple errors. Has to be read to be believed.
Garcia v. State, 308 S.W.3d 62 (Tex.App. - San Antonio 2009) Multiple errors including opening door to extraneous and not advising Defendant that punishment election to judge prevented community supervision option.
Hart v. State, 314 S.W.3d 37 (Tex.App - Texarkana 2010) Are you aware that since 2007, a jury can’t give probation for many sex offenses when the victim is under 14? This lawyer didn’t.
Raney v. State, 958 S.W.2d 867 (Tex.App. - Waco 1997). Counsel ineffective for failing to object to questions by the State which sought inadmissible or legally incorrect information.
Trinh v. State, 974 S.W.2d 872 (Tex.App. - Houston [14th Dist.] 1998). When Defendant had prior felony conviction and counsel filed election for jury to assess punishment with intent to later withdraw it (so as to not alienate jury), counsel was ineffective since the election cannot be changed without the State's consent. CCP art. 37.07 § 2.
Hodges v. State, 116 S.W.3d 289 (
Mata v. State, 141 S.W.3d 858 (Tex.App. - Corpus Christi 2004). Ineffective for allowing prosecutor to argue that jury could consider parole law in assessing punishment. Update: Wow, rev’d at 226 S.W.3d 425 (Tex.Crim.App. 2007).
Andrews v. State, 159 S.W.3d 98 (Tex.Crim.App. 2005). Failing to object to prosecutor argument that two sentences could not be stacked.
Menefee v. State, 175 S.W.3d 500 (Tex.App. - Beaumont 2005) Failure to investigate whether a prior conviction alleged for enhancement purposes had become final prior to the commission of primary offense.
Shanklin v. State, 190 S.W.3d 154 (Tex.App. - Houston[1st Dist.] 2005). Not calling any punishment witnesses.
State v. Bounhiza, 294 S.W.3d 780 (Tex.App. - Austin 2009) Unique: Court granted full New Trial when counsel made election for court assessed punishment on a 3g case when the Defendant was otherwise eligible for probation from jury.
Johnson v. State, 121 S.W.3d 133 (
Wheeler v. State, 952 S.W.2d 603 (Tex.App. - Austin 1997). Evidence was insufficient to support jury finding that the defendant intended to cause serious bodily injury by failing to provide medical care. See also Patterson v. State, 46 S.W.3d 294 (Tex. App. - Fort Worth 2001)(failing to protect from third person).
Stuhler v. State, 218 S.W.3d 706 (Tex.Crim.App. 2007) Insufficient evidence on element of “substantial risk of death.”
Lawrence v. State, 106 S.W.2d 141 (Tex. App. - Amarillo 2003) Proof that victim was 65 years old at the time of trial is not sufficient proof that victim was 65 at the time of the offense.
Hicks v. State, 241 S.W.3d 543 (Tex.Crim.App. 2007). Injury to the elderly by omission can occur when “care, custody or control” is maintained but that is not defined as “possession.”
Reyna v. State, 116 S.W.3d 362 (
Gollihar v. State, 991 S.W.2d 303 (Tex.App. - Texarkana 1999). Acquittal was ordered when indictment alleged the Defendant stole a go cart model number "136202" but proof was of model number "136203". Update: Rev'd at 46 S.W.3d 234
Macias v. State, 136 S.W.3d 702 (Tex.App. - Texarkana 2004) Post Golihar case: Fatal variance occurred in this possession of firearm by a felon case.
Garcia v. State, 149 S.W.3d 135 (Tex.Crim.App. 2004). Non English speaking Defendant entitled to interpreter at trial.
Miller v. State, 177 S.W.3d 1 (Tex.App. - Houston[1st Dist.] 2004). Confrontation clause requires court provide an interpreter for complaining witness who does not speak sufficient English.
In Regarding Cortez, 143 S.W.3d 265 (Tex.App. - San Antonio 2004). Trial court cannot order a county jail sentence to be served “day for day”.
Smith v. State, 40 S.W.3d 701 (
Marbut v. State, 58 S.W.2d 239 (
Teal v. State, 187 S.W.3d 80 (Tex.App. - Beaumont 2006). Interesting. Indictment alleged hindering apprehension of a felon but failed to allege Defendant KNEW he was a felon, thus alleging only a misdemeanor. Conviction overturned because district court never acquired jurisdiction. Update: Rev’d at 230 S.W.3d 172 (Tex.Crim.App. 2007).
Gray v. State, 133 S.W.3d 281 (Tex.App. - Corpus Christi 2004). A trial court cannot excuse a juror over the Defendant’s objections simply for economic reasons because Government Code § 62.110 forbids it. Furthermore, the error is constitutional in nature and not subject to a harm analysis. Update: CCA says not constitutional error so remanded. CA continued to find reversible error at 174 S.W.3d 794 (Tex.App. - Corpus Christi 2005).
Casey v. State, 160 S.W.3d 218 (Tex.App. - Austin 2005). The phrase “the victim of the offense” in the jury charge is a comment on the evidence.
107 S.W.3d 85 (
Carroll v. State, 990 S.W.2d 761 (Tex.App. - Austin 1999). Jury which received mug shot of defendant from an extraneous offense (it was in an envelope that was sent to the jury room) required reversal.
Gerron v. State, 57 S.W.3d 568 (
Vrba v. State, 69 S.W.3d 713 (
Holmes v. State, 223 S.W.3d 728 (Tex.App. - Houston[14th Dist] 2007).Still entitled to instruction even if Defendant does not object to the evidence when offered by the State. Aff’d 248 S.W.3d 194 (Tex.Crim.App. 2008).
Rodriguez v. State, 239 S.W.3d 277 (Tex.App. - Amarillo 2007). Instruction should have been given whether there was probable cause to arrest.
Mills v. State, 296 S.W.3d 843 (Tex.App. - Austin 2009) Instruction should have been given whether officer could have seen defendant fail to signal within 100 feet of intersection.
O’Connell v. State, 17 S.W.3d 746 (
Jimez v. State, 992 S.W.2d 633 (Tex.App. - Houston [1st Dist.] 1999).Certain parole instructions statutorily required for certain offenses inaccurately state the law regarding good time credit and, thus, are unconstitutional. See also Bradley v. State, 45 S.W.3d 221.
Loun v. State, 273 S.W.3d 406 (Tex.App. - Texarkanan 2009) Deleting paragraph of ½ or 30 years, whichever is less, was error.
Naranjo v. State, 217 S.W.3d 560 (Tex.App. - San Antonio 2006). The facts giving rise to presumption must be found beyond a reasonable doubt and jury should have been so instructed.
Colbert v. State, 56 S.W.3d 857 (
Walters v. State, 206 S.W.3d 780 (Tex.App. - Texarkana 2006). So far its still the law: Defendant can get an instruction in a murder case of threats made by decedent to the Defendant. Update: Rev’d at 247 S.W.3d 204 (Tex.Crim.App. 2007).
Brooks v. State, 967 S.W.2d 946 (Tex.App. - Austin 1998). Judge's oral instruction that a person is "responsible for the natural and probable consequences of [his act]" required, obviously, a reversal.
Howard v. State, 982 S.W.2d 536 (Tex.App. - San Antonio 1998). A juror's immediate revelation that she learned for the first time during the opening statements of the punishment phase that she is related to a victim of an extraneous offense (here a step-daughter) and calls same to court's attention sho