Last updated 12/10/12

 

 

In an effort to keep abreast of all the latest developments in current Texas criminal law, we keep this constantly updated list of significant developments in Texas jurisprudence. Other criminal lawyers are free to use this service to assist them in their practice.

 

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

Alibi

ALR Hearing

Anhydrous Ammonia, Sufficiency

Animal Cruelty

Appeal, Helms Rule

Appeal, Plea Bargain

Appeal, State's Right

Arrest Warrants, Probable Cause, Attached Documents

Assault, Defense of Consent

Assault, Family Violence, Household

Attorney-Client Privilege

Batson, Calling Prosecutor as Witness

Batson, Neutral Explanation

Batson, Prima Facie Case

Bond, Amount on Appeal

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

Bond, Reduction or Amount

Boot Camp, Suspension of Sentence, Court's Jurisdiction

Brady Violation

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, Lost

Charging Instrument, Manner and Means

Charging Instrument, Recklessness

Child Pornography, Computer Stored Images, Statutory Construction

Child Pornography, 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, Burden In Future Cases If Acquittal

Closing Argument, In General

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, DWI

Collateral Estoppel, Motion to Revoke Probation

Community Supervision, Conditions, Restitution

Community Supervision, Conditions, Reasonable Relationship

Community Supervision, Conditions, 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, Modification, Without Court Order

Community Supervision, Revocation, Delay In Holding Hearing

Community Supervision, Revocation, Delay In Filing Petition

Community Supervision, Revocation, Due Diligence

Community Supervision, Revocation, Inability to Pay

Community Supervision, Revocation, Invalid Condition

Community Supervision, Revocation, New Conviction

Community Supervision, Revocation, “No Tolerance”

Community Supervision, Revocation, Polygraph Failure

Community Supervision, Revocation, Proof of New Offense

Community Supervision, Revocation, Punishment Hearing

Community Supervision, Revocation, Sentencing, Credit for Time Served

Community Supervision, Revocation, Sex Offense Terms, “Frequent”

Community Supervision, Revocation, Time Barred

Community Supervision, Revocation, Withdrawal of Plea

Community Supervision, Shock Probation

Competency, Extradition

Competencey, Motions to Revoke/Adjudicate

Competency, "Some Evidence"

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, Out of State

Confessions, Post Polygraph Interview

Confessions, Re-initiating Further Communication

Confessions, Right To Counsel, Sixth Amendment, Adversarial Hearing

Confessions, School, Juvenile

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, Corroboration of Drug Deal, art. 38.141

Confidential Informant, Disclosure of Identity

Confrontation Clause, Crawford v. Washington

Confrontation Clause, In General

Continuance, Motion for

Controlled Substance, Delivery Of, Legally Insufficiency

Controlled Substance, Possession of, By Fraud

Controlled Substance, Possession of, Foreign Prescription

Controlled Substance, Possession Of, Insufficient Evidence, Affirmative Links

Controlled Substance, Possession Of, Chemist Testing Sample of All Bags

Controlled Substance, Possession Of, Chemist Relying on Other Chemist’s Report

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

Court’s Charge, Supplemental

Criminal Instrument, Insufficient Evidence

Criminal Trespass, City Parks

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

Deadly Weapon, Instruction

DeGarmo Doctrine, Appealing Motion to Suppress

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, Deadly Conduct and Reckless Driving

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, Mistrial

Double Jeopardy, Prosecutor's Reckless Cause of a Mistrial

Double Jeopardy, Sexual Offenses

Duty

Duress

DWI, Attorney, Reference During Initial Stop, Rule 403

DWI, Blood, Compulsory Taking

DWI, Blood, Drawn by Qualified Technician

DWI, Charge, Breath Test Refusal

DWI, Charge, Combination of Drugs

DWI, Charge, “Normal use”

DWI, Charge, “Operating”

DWI, Charge (Weird Case)

DWI, Cross Examination, Quotas

DWI, Driving on Improved Shoulder

DWI, Enhancement,

DWI, Enhancement, Felony, Stipulate Prior Convictions (Significant)

DWI, Expert Testimony, Absorption Rate

DWI, Extrapolation, Mata, Relevancy, Rule 403 Etc.

DWI, Failure To Signal

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, Felony, Tamaz error

DWI, HGN, Comment on Evidence

DWI, Insufficient Evidence

DWI, Operate, Jury Instruction

DWI, Probable Cause

DWI, Probable Cause, DRE

DWI, Public Place

DWI, Statutory Warning

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

Entrapment

Escape, Element of  Custody or Arrest

Evading Arrest, Enhancement with Prior Evading

Evading Arrest With Vehicle, Insufficient Evidence

Evidence, Authenticating Audio Tapes

Evidence, Character

Evidence, Child Sexual Abuse, Videotape Testimony

Evidence, Factual Sufficiency

Evidence, Habit

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. Lost, Remedy

Evidence, Motive

Evidence, Open the Door, Hearsay

Evidence,  Outcry Testimony, Notice, Details

Evidence, Outcry Testimony, Not First Person

Evidence, Polygraph

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

Ex Post Facto

Experts, Child Sexual Offense

Experts, Child Truthfulness

Experts, Court Appointed, Continuances

Experts, Court Appointed, Requesting

Experts, DPS Chemist, Relying on Report

Experts, Eyewitness Reliability

Experts, Gatekeeping Hearing

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, Instruction

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 404(b), Identity or Intent

Extraneous Offenses, Rule 403, Drugs

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

Failure to Register, Sex Offender, Enhancement

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

Gang, Evidence Of

Good Conduct Time, Sheriff’s Discretion

Grand Jury

Guilty Plea, Mistrial, Withdrawal

Guilty Plea, Sufficient Evidence

Habeas Corpus

Harassment, Unconstitutional

Harassment of a Public Servant, Insufficient Evidence

Hate Crime

Hazing

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

Indictment, Notice

Inducing Sexual Performance By A Child

Ineffective Assistance of Counsel (Multiple Cases)

Ineffective Assistance of Counsel, Padilla Case, Immigration Consequences

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

Injury to Elderly, Omission

Insanity, Factually Insufficient

Insufficient Evidence, Details of Indictment Not Proven

Insufficient Evidence, Fatal Variance Between Indictment and Proof

Interference With Child Custody, Insufficient Evidence

Interpreters

Jail Time, Day for Day Credit

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 Discharged Then Reconvened

Jury Instructions, When Date Of Offense Impacts Applicable Law

Jury Instructions, Culpable Mental State

Jury Instructions, Illegally Obtained Evidence, art. 38.23(a)

Jury Instructions, Judicial Notice, HGN

Jury Instructions, Parole

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”

Jury, Waiver of

Jury, Withdrawing Waiver of

Juveniles, Confessions

Juveniles, Notifying Parents

Juveniles, Pre Disposition Report, 5th Amendment

Juveniles, Revocation, Amended Motion After Term Expires

Jury, Waiver, "Substantial Right"

Kidnapping, Safe Place

Lesser Included Offenses

Lesser Included Offense, Jury Charge, Expansion of Indictment

Lesser Included Offense, Reformation When Evidence Insufficient on Greater Charge

Limitations, Tolling Due to Pending Indictment

Limitations, Waiver

Manufacturing Cont. Sub, Nazi Lab, Insufficient Evidence

Misapplication of Fiduciary Duty

Mistake of Fact

Mistrial, Occurring During Punishment On Plea of Guilty

Mistrial, Racial Comment by State

Money Laundering, Insufficient Evidence

Murder, Insufficient Evidence

Necessity, Defense of

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, Appeal

Nunc Pro Tunc, Deadly Weapon Finding

Official Misconduct, Statute Unconstitutional as Applied

Official Oppression

Open Meetings, Sufficiency

Open Pleas, Defendant Invoking 5th Amendment in Punishment Phase

Opening Statement, Denial of

Organized Crime, "Combination"

Organized Crime, Drugs, Flawed Indictment

Organized Crime, Insufficient Evidence

Organized Crime, "Overt Act"

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, Independent Evidence Of Guilt

Pleas, Opportunity to Withdraw

Pleas, Involuntary

Pleas, Involuntary, Interpreter

Pleas, Stipulation, No "Waiver and Consent"

Possession of  a Dangerous Drug, Constitutionality

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

Prosecutorial Vindictiveness

Provocation, Charge

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, Enhancement, Proof of Prior Conviction

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, Mandatory Fine

Punishment Hearing, Election, Due Process

Reckless, Pleading

Reckless/Criminal Negligence Proof

Recusal

Resisting Arrest, Sufficiency of the Evidence

Restitution, Does Not Equal “Cost Of Repair”

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, Apparent Authority

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, Mistake Of Law By Officer

Search and Seizure, Probable Cause, Odor, 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, Reasonableness

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, Suppression Hearing, Videotape

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. Consenual 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 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, Informant

Search Warrant, Insufficient Description

Search Warrant, No Probable Cause

Search Warrant, Remoteness

Search Warrant, Vehicles, Outside of Curtilage

Selective Prosecution, Equal Protection

Self Defense, Instruction

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, Punishment Range

Sentencing, Stacking

Sentencing, Stacking, Oral Pronouncement Controls Over Written Judgment

Serious Bodily Injury, Insufficient Evidence

Severance, Multiple Counts

Severance, Multiple Defendants

Severance, Two Indictments

Sex Offender, Failure to Register, Insufficient Evidence

Sexual Assault, Defense, Medical Care

Sexual Assault, Penetration, Insufficient Evidence

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

Stalking, Enhanced

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

Sudden Passion, Charge

Tampering With Evidence, Legal Insufficiency

Tampering With Governmental Record

Tampering With VIN, Sufficiency of Evidence

The Rule

Theft, Enhancement, Two or More Prior Theft Convictions

Theft, Indictment, Charging Theft "by deception"

Theft, Insufficient Evidence

Theft, Venue

Trial, Defendant Absent

Trial, Defendant in Jail Clothes or Shackles

Trial, Due Process Right to Present a Defense, Hearsay Not a Problem

Trial, Judge’s Comments

Trial, Jurors Asking Questions

Trial, Public

Trial, Reopening Evidence

Trial, Witness, Invoking Fifth Amendment During Testiony

UCW, Defensive Instruction on “Traveling”

UCW, Definition of “Club”

Value, Fair Market v. Replacement

Venue, Change Of

Venue, Perjury

Victim Impact Statement, Changing Sentence Thereafter

Victim Impact Statement, Time or Presentment

Videotaped Testimony, Child

Voir Dire, Beyond a Reasonable Doubt

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, Time Limit

Voir Dire, Venire Person Comment, Mistrial

Voluntariness, Jury Instruction

Witness, Defense Counsel As

Witness, Prosecutor Testifying As

Writs of Attachment, Denial of

 

 

Accomplice Witness Rule, Matter of Law

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.

 

Freeman v. State, 352 S.W.3d 77 (Tex.App - Houston[14th Dist.] 2011). Court was required to instruct jury on Accomplice Witness Rule even when Defendant did not request it.

 

Accomplice Witness Rule, Insufficient 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 (Tex. App. -  Austin 2001). Insufficient corroboration in this organized crime case.

 

Gaston v. State, 324 S.W.3d 905 (Tex.App - Houston[14th Dist.] 2010) Insufficient corroboration in robbery case.

 

Taylor v. State, 328 S.W.3d 574 (Tex.App -  Eastland 2010). Confidential informant’s testimony in this drug case, to which accomplice witness rule applies, was not corroborated.

 

Aggravated Assault, Public Servant, Plain Clothes, Mistake of Fact

Anderson v. State, 11 S.W.3d 369 (Tex. App. - Houston[1st Dist.] 2000). Testimony of Defendant warranted mistake of fact instruction in this case where officer allegedly assaulted was in plain clothes.

 

Aggravated Assault, No allegation of recklessness

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.

 

Aggravated Kidnapping, Restrain, Element of “Interfere Substantially”

Hines v. State, 40 S.W.3d 705 (Tex. App. -  Houston[14th Dist.] 2001). Judge Baird sits by assignment and, after a lengthy review, holds that a teller who is moved to various places within a bank did not “interfere substantially” with his liberty. Update: Rev'd by CCA at 75 S.W.3d 444 (Tex.Crim.App. 2002).

 

Alcohol, Providing to a Minor, Trespassing

Phillips v. State, 109 S.W.3d 562 (Tex. App. -  Corpus Christi 2003). A minor, working on behalf of TABC, who goes into a bar clearly indicating that no one under 21 will be admitted, commits a criminal trespass which invokes the exclusionary rule.

 

Alibi

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.

 

ALR Hearing

Texas DPS v. Caruana, 363 S.W.3d 558 (Tex. 2012) In one of the most amazing opinions ever, court holds that unsworn reports are admissible in ALR hearings despite SOAH rule.

 

Anhydrous Ammonia, Sufficiency

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 Texas to address THSC 481.124, Possession of Anyhdrous with Intent to Manufacture. The key to the case is that the court holds there is a culpable mental state on the issue of possession of anhydrous even though the statute is silent about it.

 

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).

 

Animal Cruelty

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.

 

Appeal, Helms Rule

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.

 

Appeal, Plea Bargain

Russell v. State, 33 S.W.3d 471 (Tex. App. -  Waco 2001). Extra notice requirements of appeals from plea bargains applies only to felonies and not misdemeanors.

 

Appeal, State's Right

State v. Gutierrez, 112 S.W.3d 203 (Tex. App. -  Corpus Christi 2003). When court acts outside of its plenary power time frame and reduces a sentence it previously imposed, the State has no right to appeal.

 

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.

 

State v. Blackshere, 344 S.W.3d 400 (Tex.Crim.App. 2011) Even though State has the right to appeal adverse ruling on Motion To Suppress, that right does not exist when motion is “carried over to trial”, motion is granted during trial, and court directs a verdict.

 

State v. Wilson, 349 S.W.3d 618 (Tex.App -  Texarkana 2011). State cannot appeal sentence on basis that it believes too much time credited was given.

 

Arrest Warrants, Probable Cause, Attached Documents

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.

 

Assault, Defense of Consent

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.”

 

Assault, Family Violence, Household

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)

 

Attorney-Client Privilege

Sanford v. State, 21 S.W.3d 337 (Tex. App. - El Paso 2000). Odd case. Court erred in allowing evidence that law enforcement discovered evidence after talking to the lawyer for the Defendant without proving that the Defendant waived the attorney-client privilege.

 

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.

 

Batson, Calling Prosecutor as Witness

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".

 

Batson, Neutral Explanation

Guzman v. State, 20 S.W.3d 237 (Tex. App. - Dallas 2000). When prosecutor specifically referenced gender as a reason for using his strike, even though other neutral reasons were given, the strike violated Batson. Update: Reversed at 85 S.W.3d 242 (Tex.Crim.App. 2003).

 

Gibson v. State, 112 S.W.3d 323 (Tex. App. -  Corpus Christi 2003). Race neutral reason is not race neutral if non-minority venireman had the same reason to be struck but was not. Update: Opinion withdrawn but substantially the same reissued at 117 S.W.3d 567 (Tex. App. -  Corpus Christi 2003). Update: Case reversed at 144 S.W.3d 530 (Tex.Crim.App. 2004).

 

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.

 

Hassan v. State, 346 S.W.3d 234 (Tex.App - Houston[14th Dist.] 2011). Even in municipal court.  Update: Reversed at 369 S.W.3d 872 (Tex.Crim.App.2012)

 

Batson, Prima Facie Case

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.

 

Bond, Amount on Appeal

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.

 

Bond, Appeal, Conditions, Internet Web Site Content

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.

 

Bond, Appeal, Conditions, No Driving

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.

 

Bond, Appeal, After Conviction is Reversed

Aviles v. State, 26 S.W.3d 696 (Tex.App. - Houston [14th Dist.] 2000). Court determines, as a matter of first impression, what factors should be considered when a conviction is reversed but retrial is still possible. See art. 44.04(h).

 

Bond, Conditions, Child Sexual Abuse

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.

 

Bond, Hearing, Defendant Testimony on Facts of Offense

Mendoza v. State, 959 S.W.2d 321 (Tex.App. - Waco 1997). Defendant may not be cross examined by state on circumstances of offense at bond reduction hearing.

 

Ex Parte Homan, 963 S.W.2d 543 (Tex.App. - Tyler 1996, writ dis’d as moot). Trial court erred in not allowing defendant to testify at bond reduction hearing for the limited purpose of establishing financial condition. Court did hold, however, that State could cross examine the Defendant on the circumstances of the offense if he testified on direct about same. [Note: Court of Criminal Appeals had granted petition on  this issue, but dismissed petition as moot after Defendant was convicted. No. 97-0164, March 11, 1998].

 

Bond, Reduction or Amount

Ex Parte Wood, 952 S.W.2d 41 (Tex.App. - San Antonio 1997). Bond of $350,000 in capital murder case reduced to $50,000 and bond of $100,000 in unrelated aggravated robbery was reduced to $20,000.

 

Ex Parte Emery, 970 S.W.2d 144 (Tex.App. - Waco 1998). In this drug case involving a "drug free zone", bond of $100,000 was reduced to $35,000 even though bond had originally been increased to $100,000 due to the Defendant testing positive for drugs.

 

Ex Parte Bogia, 56 S.W.3d 835 (Tex.App. - Houston[1st Dist] 2001). Bond of $360,000 was reduced to $10,000 in this case involving Theft >$100,000<$200,000.

 

Depena v. State, 56 S.W.3d 926 (Tex. App. -  Corpus Christi 2001). Bond was reduced from $1,000,000 to $300,000 in this aggravated assault case.

 

Ex Parte Sabur-Smith, 73 (Tex.App. - Houston[1st Dist] 2002). Bond reduced from $150,000 to $30,000 in sexual assault case.

 

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. - Houston[14th Dist]  2004). Bond of $1 billion a piece on three cases was excessive.

 

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

 

Boot Camp, Suspension of Sentence, Court's Jurisdiction

In Re Hall, 989 S.W.2d 786 (Tex.App. -  Waco 1999). A defendant who, pursuant to a plea agreement for boot camp followed by probation, may only have the prison sentence portion of the judgement suspended and probation granted during a window of 75 to 90 days from the date he is received into custody. Any probation order outside that time frame is void (and, in most situations, would render the prior plea involuntary).

 

Brady Violation

Hampton v. State, 36 S.W.3d 921 (Tex. App. -  El Paso 2001). Miracle of miracles: Court finds that State’s failure to turn over supplemental report was Brady violation even if “open file” policy existed.

 

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 (Tex. App. -  Waco 2003). "Information that child victim's father and stepmother did not believe victim's accusations of sexual abuse and that she made contradictory statements to them about the incident" was exculpatory evidecne. Updte: Reversed at 175 S.W.3d 756 (Tex.Crim.App. 2005)

 

Pena v. State, 353 S.W.3d 797 (Tex.Crim.App. 2011). Failure to disclose audio of DWI videotape.

 

Burglary of a Habitation, Insufficient Evidence

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.

 

Capital Murder, Pregnant, Transferred Intent

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.)

 

Capital Murder, Insufficient Evidence, Underlying Offense

Brewer v. State, 126 S.W.3d 295 (Tex. App. -  Beaumont 2004). Evidence was insufficient to show that Defendant committed underlying offense of robbery in this capital murder case.

 

Charging Instrument, Amendment

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 (Tex. App. -  Dallas 2001). Court erred in allowing State to amend indictment to “methamphetamine” from “cocaine” since doing so charged a different offense in violation of 28.10(c).

 

Charging Instrument, Amendment vs. Abandonmnet

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.

 

Charging Instrument, Culpable Mental State

Sanchez v. State, 32 S.W.3d 687 (Tex. App. -  San Antonio 2000). Failure to allege a culpable mental state in charging instrument requires that a motion to quash be granted. Note: Opinion on remand at 182 S.W.3d 34 (Tex.App. -  San Antonio 2005).

 

Thompson v. State, 44 S.W.3d 171 (Tex. App. -  Houston[14th Dist.] 2001). Unless city ordinance does not plainly dispense with the need for a culpable mental state, the state is nevertheless required to prove one.

 

Charging Instrument, Lost

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.

 

Charging Instrument, Manner and Means

Carney v. State, 31 S.W.3d 392 (Tex. App. -  Austin 2000). State is bound by the manner and means alleged. In this case, evidence was insufficient to established that the Defendant was “blocking” an officer in this Interference With a Peace Officer case.

 

Charging Instrument, Recklessness

State v. McCoy, 64 S.W.3d 90 (Tex. App. -  Austin 2001). Pleading of "recklessly causing the death" of an individual by "driving a motor vehicle, in which the said victim was a passenger, into the waters of a flood, thereby causing the said victim to drown" was insufficient to alleged acts of recklessness as required by art. 21.15.

 

Smith v. State, 309 S.W.3d 10 (Tex.Crim.App. 2010). Acts of recklessness has to be alleged in Indecent Exposure information.

 

State v. Rodriquez, 339 S.W.3d 680 (Tex.Crim.App. 2011) Acts of recklessness were not alleged in this Recklessly6

 

Child Pornography, Computer Stored Images, Statutory Construction

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.

 

Child Pornography, Insufficient Evidence

Wise v. State, 340 S.W.3d 818 (Tex.App -  Fort Worth 2011) Computer image case.

 

Closing Argument, Accusing Defendant of Extraneous Acts Not Admitted

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.

 

Closing Argument, Accusing Defense Counsel of Making Up Defense

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.

 

Closing Argument, Accusing Witness for Defense of Attempting to Bribe Victim

Washington v. State, 16 S.W.3d 70 (Tex.App. - Houston [1st Dist.] 2000). Even though friend of the Defendant made a supicious visit to the victim, there was no evidence that a formal bribe was made. Thus, the argument was outside the record.

 

Closing Argument, Burden In Future Cases If Acquittal

Watts v. State, (Tex.App-Houston[14th Dist.] 2012)  Defendant being tried for acting as security guard without a license (but wanted to be police officer in future). Prosecutor argued acquittal will make it hard to get convictions in future cases if Defendant becomes police officer.

 

Closing Argument, In General

Gonzales v. State, 115 S.W.3d 278 (Tex. App. -  Corpus Christi 2003). Comparing Defendant to Osama Bin Ladin in punishment phase was reversible error.

 

Closing Argument, Commenting on Defendant’s Failure to Testify

Hall v. State, 13 S.W.3d 115 (Tex. App. - Fort Worth 2000). “And then has he ever accepted responsibility for this? No. Has he ever shown remorse for this? No.” was a comment on the Defendant’s failure to testify.

 

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.

 

Closing Argument, Commenting on Defendant's Post Arrest Silence

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.

 

Closing Argument, Commenting on Judge’s Desire

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?”

 

Closing Argument, DWI, Alcohol Concentration

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.

 

Closing Argument, Inviting Jurors to Ignore Law

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).

 

Closing Argument, Inviting Speculation on Facts not in Evidence

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.

 

Closing Argument, Parole Instruction

Taylor v. State, 190 S.W.3d 758 (Tex.App. -  Corpus Christi). Pretty clear case of prosecutor saying that the parole laws applied to the Defendant – reversal for punishment warranted.

 

Closing Argument, Range of Punishment for Lesser Offenses

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.

 

Closing Argument, Outside Record

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.

 

Closing Argument, Referring to Defendant's Trial Demeanor

Davis v. State, 964 S.W.2d 14 (Tex.App. - Tyler 1997). It was error for prosecutor to refer to the Defendant’s failure to “twitch an eye” while victim’s injuries were displayed. Trial courts overruling of objection to the argument gave same “the stamp of judicial approval”.

 

Closing Argument, Jeffrey Dahmer and Commenting on Punishment  Election

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.

 

Closing Argument, Time Limitation

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. - Houston[14th Dist]  2006) and then on rehearing at 202 S.W.3d 278.

 

Collateral Estoppel, DWI

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.

 

Collateral Estoppel, Motion to Revoke Probation

Wafer v. State, 58 S.W.3d 138 (Tex. App. -  Amarillo 2001). When County #1 proceeds on an MTR alleging a new offense in County #2 and the judge specifically finds that the evidence does not support the allegation, County #2 is barred from prosecuting the new case on the basis of collateral estoppel. Accord: Jaime v. State, 81 S.W.3d 920 (Tex. App. -  El Paso 2002).

 

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)

 

Update: A significant opinion on collateral estoppel is York v. State, 351 S.W.3d 526 (Tex.Crim.App. 2011).

 

Community Supervision, Conditions, Restitution

Montgomery v. State, 83 S.W.3d 909 (Tex. App. -  Eastland 2002). Restitution order, in a hindering secured creditor case, should relate to the amount of collateral the Defendant disposed of and should not be the amount due and owing on the loan.

 

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.

 

Johnson v. State, 365 S.W.3d 484 (Tex.App-Tyler 2012) For what it’s worth, restitution after trial of $140 DPS lab fee will be reversed if no evidence in record to support it.

 

Community Supervision, Conditions, Reasonable Relationship

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".

 

Community Supervision, Conditions, Sex Offense

Rickels v. State, 69 S.W.3d 775 (Tex. App. -  Corpus Christi 2002). Sex offense condition of probation that Defendant "not go within three hundred fee of any premises where children 17 years or younger congregate or gather" was unconstitutionally vague.

 

Ex Parte Dangelo, 339 S.W.3d 143 (Tex.App -  Fort Worth 2010) Defendant has Fifth Amendment right not to answer polygraph questions about whether he has had sexual contact with a minor while on probation.  Update: Reversed at 376 S.W.3d 776 (Tex.Crim.App.2012)

 

Community Supervision, Conditions, When Begin, Appeal

Humphries v. State, 261 S.W.3d 144 (Tex.App. -  San Antonio 2008) Probation does not begin until appeal is final and mandate issued.

 

Community Supervision, Dirty UA, Chain of Custody

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.

 

Community Supervision, Findings of Fact and Conclusions of Law

Berry v. State, 995 S.W.2d 699 (Tex.Crim.App. 1999). Court of appeals can not affirm probation revocation decision based upon supplemental findings of fact and conclusions of law. No statute authorizes the trial court to make such supplemental findings/conclusions.

 

Community Supervision, Modification, Right to Counsel

Davis v. State, 150 S.W.3d 196 (Tex.App. -  Corpus Christi). If court holds a “supervisory hearing” (without an MTA/MTR being filed and without a capias being issued) and advises the Defendant that he is entitled to a lawyer, record must affirmatively show a waiver before court can proceed to modify probation. Update: Reversed by Court of Criminal Appeals  at 195 S.W.3d 708 (Tex.Crim.App. 2006)(but it looks like error can still be raised by writ instead of direct appeal.)  Edit: For an interesting discussion of the power to modify (including jail time) see Justice Dauphinot’s dissent in Applin v. State, 341 S.W.3d 528 (Tex.App -  Fort Worth 2011)

 

Community Supervision, Modification, Without Court Order

Witkovsky v. State, 320 S.W.3d 425 (Tex.App -  Fort Worth 2010). Probation department was not authorized to modify condition of Defendant’s probation by transferring him from one sex offender treatment program to another absent trial court authorization.

 

Community Supervision, Revocation, Delay In Holding Hearing

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.

 

Community Supervision, Revocation, Delay In Filing Petition

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.

 

Community Supervision, Revocation, Due Diligence

 

Note: Due Diligence defense was statutorily modified in 2003. Texas Code of Criminal Procedure art.  42.12 §21(e)

 

Smith v. State, 120 S.W.3d 910 (Tex. App. -  Texarkana 2003). Due diligence defense was supported by MTR being filed on 7/17/00 and arrest occurring on 3/17/03.

 

Nguyen v. State, 109 S.W.3d 820 (Tex. App. -  Corpus Christi 2003). MTR filed in January 1993 and arrest was in October 2001.

 

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 Texas).

 

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 (Tex. App. -  Corpus Christi 2001). Twenty two months after warrant signed and seven month have probation had ended.

 

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.

 

Community Supervision, Revocation, Inability to Pay

Greathouse v. State, 33 S.W.3d 455 (Tex. App. -  Houston[1st Dist.] 2000). When Defendant  cannot afford restitution payment (here $10,000+ a month), Defendant  may not have his probation revoked for not paying “as much as he could” so long as he paid something.

 

Gipson v. State, 347 S.W.3d 893 (Tex.App -  Beaumont 2011)  When failure to pay is alleged, a plea of true is not sufficient to support revocation if there is no additional evidence of willfulness of not paying based upon new 42.12 §21(c).

 

Bryant v. State, 355 S.W.3d 926 (Tex.App -  Eastland 2011) When the inability to pay concerns restitution, the court must consider the factors considered in art. 42.037(h) in determining whether to revoke community supervision.

 

Community Supervision, Revocation, Invalid Condition

Gutierrez v. State, 354 S.W.3d 1 (Tex.App -  Texarkana 2011) Court could not revoke on invalid condition that Defendant leave U.S. if not obtained legal immigration status by deadline.

 

Community Supervision, Revocation, New Conviction

Flores v. State, 102 S.W.3d 336 (Tex. App. -  Eastland 2003). A probation may not be revoked solely upon a new conviction (for an offense while on probation)  if that conviction is on appeal and not yet final.

 

Community Supervision, Revocation, “No Tolerance”

Hull v. State, 29 S.W.3d 602 (Tex.App. - Houston [1st Dist.] 2000). When trial court gives a firey speech about how he promised the Defendant he would revoke his probation, the Defendant’s guilt was predetermined and revocation order had to be set aside. Update:

 

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.

 

Community Supervision, Revocation, Polygraph Failure

Leonard v. State, 315 S.W.3d 578 (Tex.App -  Eastland 2010).  Surprise: Failing a polygraph that led to discharge from counseling can’t get you revoked.

 

Community Supervision, Revocation, Proof of New Offense

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.

 

Community Supervision, Revocation, Punishment Hearing

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)

 

Community Supervision, Revocation, Sentencing, Credit for Time Served

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.

 

Community Supervision, Revocation, Sex Offense Terms, “Frequent”

Griffith v. State, 296 S.W.3d 319 (Tex.App. -  Amarillo 2009).  Visiting public library one time did not violate term of condition prohibiting him from “frequent[ing] areas where children congregate.”

 

Community Supervision, Revocation, Time Barred

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.

 

Community Supervision, Revocation, Withdrawal of Plea

Gutierrez v. State, 65 S.W.3d 362 (Tex. App. -  Corpus Christi 2001). If court does not follow plea agreement on an MTR, Defendant has a right to withdraw his plea of "true".

 

Community Supervision, Shock Probation

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.

 

Competency, Extradition

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.

 

Competencey, Motions to Revoke/Adjudicate

McDaniel v. State, 72 S.W.3d 756 (Tex. App. -  Waco 2002). Competency statutes apply to proceedings involving a motion to revoke.

 

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.

 

Competency, "Some Evidence"

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.

 

Confessions, Failure to Honor Counsel Request, Uncontradicted Testimony

Jimenez v. State, 28 S.W.3d 702 (Tex. App. - Corpus Christi 2000). When a Defendant testifies that he told an officer before a confession that he wanted a lawyer and the state fails to rebut that testimony, confession must be suppressed.

 

Confessions, Failure to Honor Right to Counsel

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).

 

Confessions, Failure to Honor Right to End Questioning

Urias v. State, 104 S.W.3d 578 (Tex. App. -  El Paso 2003). Defendant's statement of "I want to stop. I want to stop right now" should have ended police interrogation. Update: Reversed but only because trial court did not prepare Findings of Fact and Conclusions of Law.

 

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.

 

Confessions, Miranda, Comment on Post Arrest Silence

Mendoza v. State, 959 S.W.2d 321 (Tex.App. - Waco 1997) State committed reversible error by asking Defendant how many times he had called victim to apologize and how many times he had called investigators with the police department.

 

Confessions, Officer’s Tricking or Lying

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.

 

Confessions, Out of State

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 Texas statutory requirements. The fact that the confession was taken in conformance with the foreign jurisdiction’s laws is of no moment.

 

Vega v. State, 32 S.W.3d 897 (Tex. App. -  Corpus Christi 2000). The above rule applies for juvenile confessions as well.

 

Confessions, Post Polygraph Interview

State v. Lacy, 80 S.W.3d 207 (Tex. App. -  Austin 2002). A Defendant who is in jail remains "in custody" for confession purposes even if he voluntarily agrees to submit to a polygraph at a remote location.

 

Confessions, Re-initiating Further Communication

Cross v. State, 114 S.W.3d 92 (Tex. App. -  Eastland 2003). Although Defendant invoked right to counsel and then reinitiated contact to allow further questioning, officer did not have right to do a follow-up interview without the Defendant again reinitiating the contact.  Update: Overruled at 144 S.W.3d 521 (Tex.Crim.App. 2004)

 

Confessions, Right To Counsel, Sixth Amendment, Adversarial Hearing

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. Gillespie County, 128 S.Ct 2578). If he requests a lawyer, no more questioning can occur. (Does the same rule apply if turns down court appointed counsel?) See also 326 S.W.3d 249 (Tex.App -  Fort Worth 2010).  See also Pecina v. State, 361 S.W.3d 68 (Tex.Crim.App.2012) for a comprehensive review.

 

Confessions, School, Juvenile

In Re D.A.R., 73 S.W.3d 505 (Tex. App. -  El Paso 2002). Child, under these facts, was in custody when detained by officer at school.

 

Confessions, Station House Questioning, Custody

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.

 

Confessions, Station House Questioning, Custody, Attenuation Doctrine

Vicioso v. State, 54 S.W.3d 104 (Tex. App. -  Waco 2001). Not a true “station house” confession case because the Defendant was obviously arrested. Good case discussing how the attenuation doctrine could not save the confession from being suppressed.

 

Confessions, Traffic Stop, Miranda

Alford v. State, 22 S.W.3d 669 (Tex. App. - Fort Worth 2000). In this DWI case, the traffic stop had been transformed from a Terry stop into one involving custody. Thus, oral statements made by the Defendant without the benefit of Miranda were inadmissible.

State v. Ortiz, 346 S.W.3d 127 (Tex.App -  Amarillo 2011). Defendant placed in handcuffs after wife found in possession of drugs and cop had already accused Defendant of drug possession.

 

Confessions, Videotape, Warnings

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.

 

Confessions, Voluntariness, Jury Instruction

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.

 

Confessions, Waiver, "On Its Face"

Williams v. State, 84 S.W.3d 243 (Tex. App. -  Tyler 2002). Written statement did not show substantial compliance with requirement that a voluntary waiver be shown "on its face" of the confession.

 

Confidential Informant, Corroboration of Drug Deal, art. 38.141

King v. State, 334 S.W.3d 818 (Tex.App -  Beaumont 2011).  Probably the first case holding evidence insufficient when informant does a drug deal alone and officer really has no proof to back up identity. (Even audiotape didn’t help since cop couldn’t ID Defendant’s voice.)

 

Confidential Informant, Disclosure of Identity

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 (Tex. App. - Amarillo 2000). Error in not disclosing confidential informant. Good discussion.

 

Confrontation Clause, Crawford v. Washington

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.

 

Moore v. State, 169 S.W.3d 467 (Tex.App. -  Texarkana 2005). Interview of assault victim on videotape by police about one hour after 911 was call testimonial and should have been excluded under Crawford.

 

Russeau v. State, 171 S.W.3d 871 (Tex.Crim.App. 2005). Disciplinary reports and incident reports outlining Defendant misconduct while incarcerated violated Crawford.

 

Walker v. State, 180 S.W.3d 829 (Tex.App. - Houston[14th Dist]  2005). Detective’s hearsay statement that witness picked defendant out of a photo lineup concerned testimonial statement which was admitted in violation of 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 Texas.

 

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 Austin.

 

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.

 

Menefield v. State, 343 S.W.3d 553 (Tex.App -  Amarillo 2011) Actually an ineffective of assistance case, but based upon failure to object to lab report under Crawford and Melendez-Diaz.

 

Coronado v. State, 351 S.W.3d 315 (Tex.Crim.App. 2011) Statutory procedure for admitting child’s video testimony in sex abuse case violated Crawford when a list of written questions for cross were asked by forensic examiner.

 

Confrontation Clause, In General

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.

 

Continuance, Motion for

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 Anderson v. State, 301 S.W.3d 276 (Tex.Crim.App. 2009)

 

Blackshear v. State, 342 S.W.3d 777 (Tex.App - Houston[14th Dist.] 2011) Failure to grant continuance to obtain copy of transcript from first trial that ended in mistrial during punishment phase.

 

Controlled Substance, Delivery Of, Legally Insufficiency

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.

 

Controlled Substance, Possession of, By Fraud

Avery v. State, 341 S.W.3d 490 (Tex.App -  Corpus Christi 2011). Case discussing proving offense when allegation of “by prescription form” compared to other manner and means.  Update: Affirmed at 359 S.W.3d 230 (Tex.Crim.App. 2012)

 

Controlled Substance, Possession of, Foreign Prescription

Wright v. State, 955 S.W.2d 393 (Tex.App. - San Antonio 1997). Drugs obtained by a foreign prescription drugs are not illegal to possess. (Opinion even includes a “stinkin badges” quote).

 

Controlled Substance, Possession Of, Insufficient Evidence, Affirmative Links

 

Roberson v. State, 80 S.W.3d 730 (Tex.App. - Houston[1st Dist] 2002). 24 grams of dope found in and around the car were not enough to nail the driver of the car for possession when there was also a passenger. (Good discussion on the weight to be given "conflicting stories").

 

Jenkins v. State, 76 S.W.3d 709 (Tex. App. -  Corpus Christi 2002). Drugs in trunk and Defendant was a passenger.

 

Lassaint v. State, 79 S.W.3d 736 (Tex. App. -  Corpus Christi 2002).  Even with fingerprints on one of the outer bags, evidence was insufficient.

 

Hyett v. State, 58 S.W.3d 826 (Tex.App. - Houston[14th Dist] 2001). This is not a reversed case but the chart at p. 837 summarizing the law of affirmative links in drug cases is worth a look.

 

Poindexter v. State, 115 S.W.3d 295 (Tex. App. -  Corpus Christi 2003). It is not enough to connect Defendant to his home where drugs are found. There must be evidence linking him to the dope found inside the home. Update: Rev’d at 153 S.W.3d 402 (Tex.Crim.App. 2005).

 

Evans v. State. 185 S.W.3d 30 (Tex.App. -  San Antonio 2005). Great case that will never stand up. Occupant of home who is found within arm links of dope within plain view is not sufficient to prove care, custody and control. (Even when he tells the cops they know they are there for “drugs”).  Update: It didn’t last long – reversed at 202 S.W.3d 158 (Tex.Crim.App. 2006)

 

Stewart v. State, 187 S.W.3d 249 (Tex.App. -  El Paso 2006). Rare case that holds evidence to be factually insufficient for conviction of dope found within a home. Update: That didn’t last long. Rev’d at 209 S.W.3d 137 (Tex.Crim.App. 2006).

 

Allen v. State, 249 S.W.3d 680 (Tex.App. -  Austin 2008). Defendant sitting on couch of third person’s apartment when search warrant executed.

 

Blackman v. State, 349 S.W.3d 10 (Tex.App - Houston[1st Dist.] 2009) Cocaine in box under a blanket in a rented van insufficient to convict passenger.

 

Controlled Substance, Possession Of, Chemist Testing Sample of All Bags

Enriquez v. State, 988 S.W.2d 899 (Tex.App. - Houston [14th Dist.] 1999). Defendant should have received lesser include offense charge of delivery of 5 to 50 pounds when chemist only tested one bundle of 105 bundles and the bundles were not virtually identical. Distinguishing Gabriel v. State, 900 S.W.2d 721 (Tex.Crim.App. 1995). Update: Reversed at 21 S.W.3d 277 (Tex.Crim.App. 2000)(based upon facts, not law).

 

Controlled Substance, Possession Of, Chemist Relying on Other Chemist’s Report

Scott v. State, 155 S.W.3d 312 (Tex.App. -  El Paso 2004). Although it is permissible for one expert chemist to give an opinion based upon the work of another chemist, it is subject to a valid hearsay objection if he simply reads from the other chemist’s report without expressing his own opinion.  Update: The U.S. Supreme Court opinion of Bullcoming v. New Mexico (2011) changes all of this.

 

Counsel, Appointed, Substitute Before Punishment Phase

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.

 

Counsel, Right to; Knowing Waiver

Henderson v. State, 13 S.W.3d 107 (Tex. App. - Texarkana 2000). On direct appeal, in order to show a knowing and intelligent waiver of right to counsel requires more than a signed waiver form. The record should show that the Court actively inquired as to whether the Defendant understood the consequences of his waiver.

 

Counsel, Right to; Knowing Waiver; Revocation Proceeding

Hatten v. State, 32 S.W.3d 868 (Tex. App. -  Texarkana 2000). Unless the record shows the Defendant  was admonished on the record, a mere written waiver of right to counsel is not sufficient to show a knowing and intelligent waiver.

 

Counsel, Right to, Waiver, After Right To Counsel Attached

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.

 

Counsel, Right to; Withdrawal of Waiver

Walker v. State, 962 S.W.2d 124 (Tex.App. - Houston [1st Dist.] 1997). A Defendant proceeding pro se may withdraw his waiver of counsel at any time during the trial and, if done, the request must be honored.

 

Court’s Charge, Counts v. Paragraphs, Unanimous Verdict

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.

 

Court’s Charge, Supplemental

55 S.W.3d 74 (Tex. App. -  Corpus Christi 2001). It was error for the court to submit a lesser included offense charge AFTER the jury has already begun deliberations.

 

Criminal Instrument, Insufficient Evidence

Danzi v. State, 101 S.W.3d 786 (Tex. App. -  El Paso 2003). A "slim jim" is not a criminal instrument as a matter of law.

 

Criminal Trespass, City Parks

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.

 

Criminal Trespass, Pleading, Ownership, Insufficient Evidence

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.

 

Criminal Trespass, Real Estate Only

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).

 

Cross Examination, Paid Informant

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.

 

Cross-Examination, Restriction

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.  See also Holmes v. State, 323 S.W.3d 163 (Tex.Crim.App. 2009)

 

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.)

 

Cross Examination, Restriction, Opened Door

Sherman v. State, 20 S.W.3d 96 (Tex. App. - Texarkana 2000). When the State asked its own witness about a prior bad act, the trial court erred in not allowing the Defendant to cross examine the witness on the details of that bad act.

 

Cross-Examination, Questioning on Post Arrest Silence

Veteto v. State, 8 S.W.3d (Tex. App. - Waco 2000). Prosecutor committed reversible error by asking three times whether Defendant wished to make a statement once he was placed under arrest. 

 

Hampton v. State, 121 S.W.3d 778 (Tex. App. -  Austin 2003). Similar case.

 

Culpable Mental State, Health & Safety Code

Ex Parte Weise, 23 S.W.3d 449 (Tex.App. - Houston [1st Dist.] 2000). A statute in the Health and Safety Code that penalizes conduct (here, dumping), must implicitly have a culpable mental state as required by art. 6.02 of the Texas Penal Code.

 

Deadly Conduct, Felony, Insufficient Evidence

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)

 

Deadly Weapon Finding, Culpable Mental State

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.

 

Deadly Weapon Finding, Insufficient Evidence

Sheridan v. State, 950 S.W.2d 755 (Tex.App. - Fort Worth, 1997). Evidence did not support a deadly weapon finding (an automobile) in the Failure to Stop and Render Aid case when the defendant left the scene of the accident on foot.

 

Rodriguez v. State, 31 S.W.3d 772 (Tex. App. -  Austin 2000). The cocaine, in a delivery to a minor case, cannot in itself by a deadly weapon if there is no evidence that it was used in a manner capable of causing death or serious bodily injury.

 

Adame v. State, 37 S.W.3d 141 (Tex. App. -  Waco 2001). No evidence BB gun was loaded. Rev'd at 69 S.W.3d 581 (Tex.Crim.App. 2002)(whether gun is loaded is "insignificant").

 

Lee v. State, 51 S.W.3d 365 (Tex. App. -  Austin 2001).  Insufficient evidence air pistol was deadly weapon. (It was never recovered).

 

Johnston v. State, 115 S.W.3d 761 (Tex. App. -  Austin 2003). Cigarette lighter was not a deadly weapon under the facts of this case.

 

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.  Accord: Wyatt v. State, 367 S.W.3d 337 (Tex.App-Houston[14th Dist.] 2012)

 

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.

 

Foley v. State, 327 S.W.3d 907 (Tex.App -  Corpus Christi 2010) Deadly weapon finding in one car DWI crash.

 

Hernandez v. State, 332 S.W.3d 664 (Tex.App -  Texarkana 2010) Toy gun in aggravated kidnapping case.

 

Deadly Weapon Finding, Insufficient Notice

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.

 

 

Deadly Weapon Finding, No Jury Determination

Edwards v. State, 21 S.W.3d 625 (Tex. App. - Waco 2000). When jury found Defendant guilty of lesser included offense but did not reference “as alleged in the indictment” and there was no affirmative finding by the jury on a deadly weapon issue, trial court could not enter deadly weapon finding in the judgment. But read Lafleur v. State, 106 S.W.3d 91 (Tex.Crim.App. 2003) which might effect this decision.

 

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: Medina v. State, 962 S.W.2d 83 (Tex.App. - Houston [1st Dist.] 1997).

 

Grant v. State, 33 S.W.3d 875 (Tex. App. -  Houston[14th Dist.] 2000). Indictment alleging that Defendant  took a peace officer’s “firearm” is insufficient for a deadly weapon finding unless there was an allegation that Defendant  used or exhibited the firearm during the offense.

 

Dorsey v. State, 117 S.W.3d 332 (Tex. App. -  Beaumont 2003). Indictment that alleged the Defendant caused the death on another "by shooting her" was not sufficient for court to enter a deadly weapon finding absent a special issue.

 

Deadly Weapon Finding, Parties

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: Taylor v. State, 7 S.W.3d 732 (Tex.App. - Houston [14th Dist.] 1900), Anderson v. State, 62 S.W.3d 304 (Tex. App. -  Fort Worth 2001), Frazier v. State, 115 S.W.3d 743 (Tex. App. -  Beaumont 2003).

 

Deadly Weapon, Instruction

Blanson v. State, 107 S.W.3d 103 (Tex. App. -  Texarkana 2003). Trial court erred in instructing jury that a knife was a deadly weapon as a matter of law.

 

DeGarmo Doctrine, Appealing Motion to Suppress

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

 

 

Discovery, Exculpatory Evidence

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".

 

Discovery, Withholding Evidence

Oprean v. State, 201 S.W.3d 724 (Tex.App. -  2006). State willfully failed to turn over video requiring exclusion.

 

Dismissal by Trial Court, Unusual Case

State v. Mungia, 76 S.W.3d 570 (Tex. App. -  Corpus Christi). Defendant pled guilty to murder for 10 years in the pen with agreement to assist state against co-defendant's. Plea entered and case "postponed" for Defendant to assist State as witness. Months later, after Defendant assisted state, Judge dismisses case outright "in the best interest of justice." State appealed and court of appeal affirmed. Update: Rev'd at 119 S.W.3d 814 (Tex.Crim.App. 2003)

 

Disorderly Conduct, Shooting the Bird

Coggin v. State, 123 S.W.3d 82 (Tex. App. -  Austin 2003). "Shooting the bird" to a motorist is legally insufficient, in this case, to constitute Disorderly Conduct.

 

Double Jeopardy, Acquittal of Higher Offense

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].

 

Double Jeopardy, Aggravated Kidnapping, Aggravated Assault

Girdy v. State, 213 S.W.3d 315 (Tex.Crim.App. 2006). Aggravated assault was lesser included offense of aggravated kidnapping.

 

Double Jeopardy, Contempt in Injunction (Wacky)

State v. Jackson, 75 S.W.3d 653 (Tex. App. -  Eastland 2003). Defendant had a "temporary injunction" against her to stay away from victim. Defendant then commits agg assault against victim and is found in contempt of court for violating injunction and ordered to serve 90 days in jail. Held: 90 day contempt sentence bars future prosecution for agg assault.

 

Double Jeopardy, Deadly Conduct and Reckless Driving

Zuliani v. State, 338 S.W.3d 213 (Tex.App -  Austin 2011). Defendant could not be convicted of both for same conduct.

 

Double Jeopardy, Delivery and Possession with Intent

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)

 

Double Jeopardy, DWI Injuries and Reckless Assault

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)

 

Double Jeopardy, Improper Acceptance of Non-Unanimous Verdict

Ex Parte Aviles, 78 S.W.3d 677 (Tex. App. -  Austin 2002). Odd case: DWI accident that gave rise to Intoxication Assault and Aggravated Assault charge. Jury found Defendant not guilty on those two charges but guilty of lesser offense of simple DWI. Foreman told court that the "not guilty" verdicts were NOT unanimous but the DWI guilty verdict was unanimous. Court accepted verdict and released jury. Held: Although not guilty verdicts must be unanimous, once court accepted verdict the double jeopardy clause prevents retrial.

 

Double Jeopardy, Injury To A Child

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.

 

Double Jeopardy, Manslaughter and Intoxication Manslaughter

Harris v. State, 34 S.W.3d 609 (Tex. App. -  Waco 2000). Defendant could not be convicted for intoxication manslaughter and manslaughter out of one wreck that caused one death.

 

Double Jeopardy, Mistrial

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.

 

Ex Parte Garza, 337 S.W.3d 903 (Tex.Crim.App. 2011). No manifest necessity to declare mistrial over Defendant’s objection when one of six county court jurors became sick.

 

Double Jeopardy, Prosecutor's Reckless Cause of a Mistrial

 

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. - Dallas 1997). Trial court properly granted Defendant's double jeopardy motion after first trial ended in mistrial when prosecutor, on voir dire, stated that the state's investigator had called the Defendant and the Defendant "said that he wasn't interest in talking about it and to call his attorney".

 

State v. Cabrera, 24 S.W.3d 528 (Tex. App. - Corpus Christi 2000). State was reckless in questioning to witnesses about truthfulness of child in violation of case law and motion in limine.

 

Ex Parte Fife, 49 S.W.3d 35 (Tex. App. -  Fort Worth 2001)

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).

 

Double Jeopardy, Sexual Offenses

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.

 

Ex Parte Amador, 326 S.W.3d 302 (Tex.Crim.App. 2010) Pleading to misdemeanor Indecent Exposure bars subsequent  prosecution for two charges of Indecency With a Child by Exposure when there was just one act of exposure in front of two children.

 

Harris v. State, 359 S.W.3d 625 (Tex.Crim.App. 2011) One act of exposing oneself to multiple children can only give rise to one conviction.

 

Duty

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.

 

Duress

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.

 

DWI, Attorney, Reference During Initial Stop, Rule 403

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.

 

DWI, Blood, Compulsory Taking

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. - Houston[14th Dist] 2001).

 

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. Mosely, 348 S.W.2d 435 (Tex.App -  Austin 2011). If there is no probable cause to arrest, mandatory blood draw statute is not applicable (death caused by accident).

 

DWI, Blood, Drawn by Qualified Technician

State v. Laird, 38 S.W.3d 707 (Tex. App. -  Austin 2000). EMT is not allowed to draw blood under implied consent law even if he is not engaged in emergency services. See Transportation Code § 724.017.  Accord: Krause v. State, 368 S.W.3d 863 (Tex.App-Houston[14th Dist.] 2012)

 

State v. Robinson, 325 S.W.3d 212 (Tex.App -  Waco 2010).  State failed to prove qualified technician took blood at hospital since deputy could not recall who did so. Update: Reversed at 334 S.W.3d 776 (Tex.Crim.App. 2011) It was the Defendant’s burden to prove that the statute had not been complied with, not the State.

 

DWI, Charge, Breath Test Refusal

Bartlett v. State, 270 S.W.3d 147 (Tex.Crim.App. 2009). It is an impermissible comment on the evidence for court to charge jury that it could consider evidence of a breath test refusal.

 

DWI, Charge, Combination of Drugs

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).

 

DWI, Charge, “Normal use”

Murphy v. State, 44 S.W.3d 656 (Tex. App. -  Austin 2001). It was error to define, in the court’s charge, “normal use” as meaning “a normal non-intoxicated” person.

 

DWI, Charge, “Operating”

Kirsch v. State ___ S.W.3d ___ (Tex.Crim.App.2012). Error to define “operating.

 

DWI, Charge (Weird Case)

Ferguson v. State, 2 S.W.3d 718 (Tex.App. -  Austin 1999). When evidence did not support same and even though language was included in information, it is improper to define "intoxication" in the charge to include "a substance or its vapors that contain a volatile chemical, an abusable glue, or an aerosol paint"

 

DWI, Cross Examination, Quotas

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”.

 

DWI, Driving on Improved Shoulder

Lothrop v. State, 372 S.W.3d 187 (Tex.Crim.App.2012) State has the burden of proving Defendant drove on shoulder in violation of one of seven enumerated ways as well as the driving was unsafe.

 

DWI, Enhancement, 

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 (Tex. App. -  San Antonio 2000). Weird case. Felony DWI where the State alleged 1986 and 1987 DWIs to enhance. Since they were greater than 10 years old, the State introduced a 1991 DWI conviction to “tack” the old judgments. Held: Once the 1991 judgment was used for tacking, it could not be used as a prior conviction to further enhance the Defendant  under the general enhancement provisions.

 

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.  Update: Now overruled by legislative fix.

 

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.

 

State v. Wilson, 324 S.W.3d 595 (Tex.Crim.App. 2010) A DWI conviction with a probation before January 1, 1984 cannot be used for enhancement in DWI-Felony case.

 

DWI, Enhancement, Felony, Stipulate Prior Convictions (Significant)

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).  For an update on the status of stipulations in DWI-Felony, see Martin v. State, 200 S.W.3d 635, (Tex.Crim.App. 2006).

 

 DWI, Expert Testimony, Absorption Rate

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.

 

DWI, Extrapolation, Mata, Relevancy, Rule 403 Etc.

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. - Houston[14th Dist]  2004).

 

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.

 

DWI, Failure To Signal

Mahaffey v. State, 316 S.W.3d 633 (Tex.Crim.App. 2010)  Merge into a lane from an ending lane was neither a turn nor a lane change that required use of turn signal.

 

DWI, Failure To Stop At White Line

State v. Police, 377 S.W.3d 33 (Tex.App-Waco 2012). If no stop line, that does not mean you have to come to a complete stop behind the actual stop sign. (Not a DWI case.)

 

DWI, Failure to Maintain a Single Lane

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:  Griffin v. State, 54 S.W.3d 820 (Tex. App.. -  Texarkana 2001)(Crossing the double yellow strip does not require an element of “unsafe” movement). See White v. State __ S.W.3d ___ (Tex.App. -  Fort Worth 2008)(it buried in there, but crossing the fog line isn’t enough.); See also Bracken v. State, 282 S.W.3d 94 (Tex.App. -  Fort Worth 2009)(crossing ½ was into oncoming lane, even if it is not a no passing zone, sufficient to stop under Texas Transportation Code § 545.051(a))

 

Aviles v. State, 23 S.W.3d 74 (Tex.App. - Houston [14th Dist.] 2000). This is not a DWI case but its application is most likely in the DWI forum. The court holds that the intentional changing of multiple lanes (i.e. go from the far left lane, across the center lane, into the right lane) is not per se a violation of Texas Transportation Code § 545.060(a).

 

Ehrhart v. State, 9 S.W.3d 929 (Tex. App. - Beaumont 2000). Failing to maintain a single lane (here there was “touching” of the traffic lines on both sides) is not a traffic offense unless the “movement was unsafe or dangerous”.

 

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 (Tex. App. -  Amarillo 2000). Case is more about a videotape showing fair driving while the officer exaggerated how poorly he had driven.

 

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).

 

DWI, Felony, Proof of Priors in Case in Chief

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).

 

DWI, Felony, All Convictions Must be Proved (Significant)

Jiminez v. State, 981 S.W.2d 393 (Tex.App. -  San Antonio, pet. ref’d).   This case was actually not reversed but it's holding is very significant: Under the current version of the felony DWI statute, if the State alleges more than two prior DWI convictions in the indictment (even if "or" is used), the State is required to prove every one of those prior convictions to establish it's case.

 

DWI, Felony, Offense Date of Prior Convictions (Significant – Old Law)

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 (Tex. App. -  Texarkana 2001).Note: This is a pre-1991 amendment case.

 

DWI, Felony, 10 Year Rule Under Amended Penal Code

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). .

 

DWI, Felony, Insufficient Proof of Prior Convictions

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.

 

DWI, Felony, Stipulation to Priors

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.

 

DWI, Felony, Tamaz error

 

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 (Tex. App. -  Fort Worth). When Defendant stipulates to the two prior convictions, the actual certified judgments should not be admitted into evidence before the jury.

 

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”.

 

DWI, HGN, Comment on Evidence

O’Connell v. State, 17 S.W.3d 746 (Tex. App. - Austin 2000). Court erred in instructing jury that HGN test was scientifically reliable.

 

DWI, Insufficient Evidence

Scillitani v. State, 297 S.W.3d 498 (Tex.App - Houston[14th Dist.] 2010) Evidence was insufficient  in this one car wreck case which was not witnessed. Update: Reversed at 315 S.W.3d 542 (Tex.Crim.App. 2010)

 

DWI, Operate, Jury Instruction

Kirsch v. State, 357 S.W.3d 645 (Tex.Crim.App. 2012) Error to define “operate” in the jury charge.

 

DWI, Probable Cause

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. 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.

 

DWI, Probable Cause, DRE

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.  See also Delane v. State, 369 S.W.3d 412 (Tex.App-Houston[1st Dist.] 2012, pet ref’d.)(improper for non-DRE officer to testify Defendant must have “had something else on board” besides alcohol.)

 

DWI, Public Place

Fowler v. State, 65 S.W.3d 116 (Tex. App. -  Amarillo 2001). An unpaved driveway of a rural residence located approximately 1/4 of a mile from a county road in an isolated and secluded area of county was not a  "public place".

 

DWI, Statutory Warning

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).

 

DWI, Videotape, Invoking Right to Counsel

Opp v. State, 36 S.W.3d 158 (Tex. App. -  Houston[1st Dist.] 2000). Court erred in allowing jury to hear Defendant invoke right to counsel on videotape.

 

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.

 

Kalisz v. State, 32 S.W.3d 718 (Tex. App. -  Houston[14th Dist.] 2000). Stands for the proposition that allowing the jury to view the Defendant’s act of walking out of the room after Right to Counsel warning was given is the equivalent of having the jury hear the Defendant invoke that right.

 

DWI, Videotape, Invoking Right to Terminate Interview

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.

 

DWLS, Effect of Failure to Pay Reinstatement Fee

Allen v. State, 11 S.W.3d 474 (Tex. App. - Houston[14th Dist.]2000). Once a DL has been suspended for 90 days due to a breath test refusal, the DWLS statute does not authorize a conviction thereafter (from day 91 forward) even if the Defendant’s DL has not been reinstated because of the reinstatement fee having not been paid.

 

DWLS, Final Underlying Conviction Required

Jones v. State, 21 S.W.3d 639 (Tex. App. - Amarillo 2000). When a Defendant enters a plea of guilty, and is found guilty, for a controlled substance offense, his license cannot be suspended under Transportation Code § 521.372  until the judgment becomes final which is 30 days after the judgment is signed. Therefore, he cannot be found guilty of DWLS within those 30 days regardless of the notice sent by  DPS.

 

Endangering a Child, Imminent Harm, Sufficiency

Millslagle v. State, 81 S.W.3d 895 (Tex. App. -  Austin 2002). Leaving a child in a car unattended for 45 mintues, without more, is not sufficient to prove the threat of "imminent" injury.

 

Entrapment

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.

 

Escape, Element of  Custody or Arrest

Medford v. State, 990 S.W.2d 799 (Tex.App. -  Austin 1990. A person who is detained pursuant to a Terry stop cannot be convicted of escape, which requires a Defendant be arrested or in custody, if he flees from the detention. The mere fact that someone is "seized" for 4th amendment purposes does not mean that they are necessarily in custody. Disagreeing with Fort Worth Court of Appeals. Update: Reversed at 13 S.W.3d 769 (Tex.Crim.App. 2000) but CA again reverses and enters an acquittal at 21 S.W.3d 668 (charge’s definition of “custody” improper).

 

Evading Arrest, Enhancement with Prior Evading

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).

 

Evading Arrest With Vehicle, Insufficient Evidence

Griego v. State, 345 S.W.3d 742 (Tex.App -  Amarillo 2011)  Fact specific.

 

Evidence, Authenticating Audio Tapes

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)

 

Evidence, Character

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.”

 

Evidence, Child Sexual Abuse, Videotape Testimony

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.

 

Evidence, Factual Sufficiency

Edit: All the cases have been ruled obsolete with the Court of Criminal Appeals abolishing the factual sufficiency review in Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010)  For those who question Brooks, see the concurrence in Green v. State, 350 S.W.3d 617 (Tex.App - Houston[14th Dist.] 2011) for some ammunition.

 

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 (Tex. App. -  Waco 2000). You won't see this very often: Evidence factually insufficient in DWI case. Court looked at video: "He did not stumble, fall down or appear in any way disoriented".

 

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 (Tex. App. -  Texarkana 2001). Evidence was factually insufficient to convict passenger of possessing firearm even though officer saw him reaching into back seat area where gun was subsequently located.

 

Valle v. State, 223 S.W.3d 538 (Tex.App. -  Amarillo 2006) Evidence factually insufficient in this marijuana possession case.

 

 

Evidence, Habit

Dietz v. State, 123 S.W.3d 528 (Tex. App. -  San Antonio 2003). In an assault case, evidence that wife/victim would react aggressively during fights and that Defendant would retreat should have been admitted.

 

Evidence, Hearsay, Backdoor Trick

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.

 

Evidence, Hearsay, Business Records

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.

 

Evidence, Hearsay, Co-Defendant's Statement/Statement Against Interest

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 (Tex. App. - Austin 2000).  Co-defendant’s statement, which implicated himself and Defendant, was inadmissible in that portion which inculpated the Defendant, Rule 803(24) notwithstanding.

 

Mendez v. State, 56 S.W.3d 880 (Tex. App. -  Austin 2001). Co-defendant’s confession obtained as a result of custodial interrogation was not admissible. (A tremendous defense case on the issue).

 

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.

 

Evidence, Hearsay, Deceased's Victim Note

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.

 

Evidence, Hearsay, Excited Utterance

Aguilera v. State, 75 S.W.3d 60 (Tex. App. -  San Antonio 2002). Statements of child victim did not qualify as excited utterance.

 

Evidence, Hearsay, Letter to DA

Hardy v. State, 71 S.W.3d 535 (Tex. App. -  Amarillo 2002). Letter written to DA regarding location of property in a theft case was hearsay and could not be admitted under business records exception.

 

Evidence, Hearsay, Medical Exception

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. Update: Prieto v. State, 337 S.W.3d 918 (Tex.App -  Amarillo 2011) concerns this issue.

 

Evidence, Hearsay, Prior Consistent Statement

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.)

 

Evidence, Hearsay, Search Warrant Affidavit

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.

 

Evidence, Hearsay, Statement Against Interest

Walter v. State, 267 S.W.3d 883 (Tex.Crim.App. 2008) The high court gives a definitive explanation of this rule.

 

Evidence, Hearsay, Truth of Matter Asserted

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.

 

Evidence. Lost, Remedy

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). Update (again): It came back as a favorable Brady case. 353 S.W.3d 797 (Tex.Crim.App. 2011)

 

Evidence, Motive

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

 

Evidence, Open the Door, Hearsay

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.

 

Evidence,  Outcry Testimony, Notice, Details

Gay v. State, 981 S.W.2d 864 (Tex.App. - Houston [14th Dist.] 1998). Outcry notice (art. 38.072) was not sufficiently detailed.

 

Evidence, Outcry Testimony, Not First Person

Brown v. State, 189 S.W.3d 382 (Tex.App. -  Texarkana 2006). Self explanatory.

 

Evidence, Polygraph

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.

 

Evidence, Present Sense Impression, Narration on DWI Tape

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.

 

Evidence, Rule 403,  Substantial Prejudice

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 (Tex. App. -  Corpus Christi 2002). Prior incident of burglary and sexual assault, although relevant to identity, was substantially outweighed by danger of unfair prejudice.

 

Booker v. State, 103 S.W.3d 521 (Tex. App. -  Fort Worth 2003). Evidence of extraneous kidnapping and sexual assault, although relevant, was overly prejudicial.

 

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).

 

Evidence, Sexual Assault, Medical Records Exception

Moore v. State, 82 S.W.3d 399 (Tex. App. -  Austin 2002).  This is not a reversal, but the concurrence of this opinion provides authority that not everything a sex assault victim says to a medical provider is "pertinent" enough to fall within hearsay exception.

 

Evidence, Sexual Assault, Victim’s Prior Threat of Falsely Accuse 3P

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.

 

Evidence, Sexual Assault, Victim's Prior Sexual Contact

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.

 

Evidence, Sexual Assault, Victim's Prior Statement of 3P Abuser

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.].

 

Evidence, State Estopped from Challenging

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).

 

 

Ex Post Facto

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 (Tex. App. -  Tyler 2001). Change in art. 38.07 that requires corroboration of sexual assault allegation was unconstitutionally applied to Defendant. Version that was in effect at time of offense, not time of trial, controls.  See also Carmell v. Texas, 120 S.Ct. 1620 (2000).

 

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.

 

Experts, Child Sexual Offense

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).

 

Kelly v. State, 321 S.W.3d 583 (Tex.App - Houston[14th Dist.] 2010). Witness was not qualified to testify as expert on “grooming process” used by child predators that was predicated on detailed medical information. Note: Part of “Mineola Swingers Club”  cases.

 

Experts, Child Truthfulness

Aguilera v. State, 75 S.W.3d 60 (Tex. App. -  San Antonio 2002). Court erred in allowing psychologist to testify that in his experience only 10% of child victims lie.

 

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.

 

Barshaw v. State, 320 S.W.3d 625 (Tex.App -  Austin 2010) Expert testimony that mentally retarded person were honest to a fault and could not fabricate elaborate stories should not have been allowed. Rev’d at 342 S.W.3d 91 (Tex.Crim.App. 2011)(but reversal was on harm analysis only.)

 

Experts, Court Appointed, Continuances

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.

 

Experts, Court Appointed, Requesting

Williams v. State, 958 S.W.2d 186 (Tex.Crim.App. 1997). A defendant's motion for a court appointed expert per Ake v. Oklahoma should be allowed ex parte.

 

Experts, DPS Chemist, Relying on Report

Martinez v. State, 993 S.W.2d 751 (Tex.App. -  El Paso 1999). State did not establish predicte for DPS supervisor to testify to the results of chemical test performed by one of his underlings. Supervisor was not established as an expert in his own right nor did he testify that the underlying report is one typically relied upon by experts in his field.

 

Experts, Eyewitness Reliability

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.

 

Experts, Gatekeeping Hearing

Combo v. State, 6 S.W.3d 319 (Tex. App. - Houston[14th Dist.]). Failure to conduct the gatekeeper hearing prior to the admission constitutes an abuse of discretion.

 

Experts, Gatekeeping Hearing, Suppression Hearings

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.

 

Experts, Hypnotically Refreshed Testimony

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).

 

Experts, Kelly Predicate In General

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.

 

Experts, Methamphetamine Effect

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.

 

Experts, Urinalysis, Probation Revocation

Hernandez v. State, 55 S.W.3d 701 (Tex. App. -  Corpus Christi 2001). State failed to satisfy Kelly predicate in a MTR hearing based upon a dirty UA. State relied upon an “ADX analyzer”.

 

Expunction, Misdemeanors Pled in Bar

Travis County Attorney v. J.S.H., 37 S.W.3d 163 (Tex. App. -  Austin 2001). Where a misdemeanor offense was pled in bar, it may be expunged since it did not amount to a “final conviction”.

 

Extrajudicial Confession, Corroboration

Salazar v. State, 31 S.W.3d 726 (Tex. App. -  Corpus Christi 2000). An extrajudicial confession requires independent proof to corroborate same in order to sustain conviction.

 

Extraneous Offenses, Conduct of Third Parties

Castaldo v. State, 32 S.W.3d 413 (Tex. App. -  Waco 2000). Extraneous bad acts of a third party (in this case an erratic driver when the Defendant was a passenger) are still subject to a 404(b) objection and exclusion. Rev'd at 78 S.W.3d 345 (Court of Criminal Appeals affirms that extraneous rule applies to third persons but rules that error here was not reversible).

 

Extraneous Offenses, Election By State

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 Dixon v. State, 171 S.W.3d 432 (Tex.App. - Houston[14th Dist]  2005) update rev’d at 201 S.W.3d 731 (Tex.Crim.App. 2006) because not constitutional error. . Most recent CCA case at Phillips v. State, 193 S.W.3d 904 (Tex.Crim.App. 2006).

 

Extraneous Offenses, Instruction

Heigelmann v. State, 362 S.W.3d 763 (Tex.App- Texarkana 2012). Judge really screwed up the limiting instruction in this case.

 

Extraneous Offenses, "Opening the Door"

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.

 

Extraneous Offenses, Prior Injuries in Shaken Baby Syndrome Case

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.

 

Extraneous Offenses, Rule 404 Notice

Webb v. State, 36 S.W.3d (Tex. App. -  Houston[14th Dist.] 2000). Request for extraneous offenses six months before trial which led to disclosure on the Thursday before trial was not timely.

 

Extraneous Offenses, Rules 404 and 403 vs. art. 38.36 in Murder Case

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.

 

Extraneous Offenses, Rule 404(b), Identity or Intent

Jackson v. State, 320 S.W.3d 873 (Tex.App -  Texarkana 2010). Robbery one month after charged offense of robbery was inadmissible and could not be justified as an attempt to prove identity or intent.

 

Extraneous Offenses, Rule 403, Drugs

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).

 

Pittman v. State, 321 ww 565 (Tex.App - Houston[14th Dist.] 2010). Note: This whole case is a mess – it is one of the “Mineola Swingers” cases featured in Texas Monthly.

 

Extraneous Offenses, Sexual Offenses

DeLeon v. State, 77 S.W.3d 300 (Tex. App. -  Austin 2001). Trial court erred in allowing extraneous offense evidence of crimes against persons other than victim alleged in indictment.

 

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.

 

Extraneous Offenses, Sexual Offenses, Notice

Hayden v. State, 13 S.W.3d 69 (Tex. App. - Texarkana 2000). Court holds that Defendant should have provided notice of various bad acts/offenses committed against the child by the Defendant and that they cannot be exempted from 404(b) notice requirements as “same transaction contextual evidence”. Rev'd at 66 S.W.3d 269 (notice satisfied by providing witness statements).

 

Extraneous Offenses, Sufficiency

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.

 

Extraneous Offenses, Third Person, Relevancy

Williams v. State, 27 S.W.3d 599 (Tex. App. - Waco 2000). Odd case. Defendant was convicted of assaulting prison guard while an inmate. Guard had come into the area because he was escorting the co-defendant (who was not on trial) back to his cell after co-defendant had been caught masturbating. Held: Evidence of co-defendant’s masturbation was reversible error especially in light of state’s closing argument.

 

Failure to Identity, Not Under Arrest or Detention

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.

 

Failure to Register, Sex Offender, Enhancement

Ford v. State, 334 S.W.3d 230 (Tex.Crim.App. 2011) The enhancement statute at §62.102 for previous conviction allows a Defendant to be punished for one level higher but does not move the conviction to one level higher. (Important for further enhancement.)

 

Fifth Amendment, Speech Sample By Defendant, No Cross

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.

 

Financial Responsibility, Proof Of

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

 

Forfeiture and Seizure, Civil, Service of Process

Ortiz v. State, 24 S.W.3d 603 (Tex. App. - Corpus Christi 2000). Delay of 167 days in serving Defendant required dismissal.

 

Forfeiture and Seizure, Excessive Fines Clause

One 1996 Dodge Truck v. State, 122 S.W.3d 422 (Tex. App. -  Beaumont 2003). Seizure of $11,000 truck for a trace of a controlled substance was unconstitutional.

 

Gang, Evidence Of

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.

 

Martinez v. State, 147 S.W.3d 404 (Tex.App. -  Tyler 2001, pet. granted). Evidence of Defendant’s gang membership was inadmissible in this capital murder trial. Update:  Court of Criminal Appeals says error was waived. 98 S.W.3d 189 (Tex.Crim.App. 2003).

 

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.

 

Good Conduct Time, Sheriff’s Discretion

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”.

 

Grand Jury

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. Update: Reversed at 322 S.W.3d 251 (Tex.Crim.App. 2010)

 

Guilty Plea, Mistrial, Withdrawal

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.

 

Guilty Plea, Sufficient Evidence

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.

 

Habeas Corpus

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).

 

Harassment, Unconstitutional

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. Update: Case reversed at 322 S.W.3d 662 (Tex.Crim.App. 2010)

 

Harassment of a Public Servant, Insufficient Evidence

Gomez v. State, 331 S.W.3d 832 (Tex.App -  Amarillo 2011) It’s a resulted oriented crime and evidence was insufficient when Defendant pushed by officer getting blood on him during domestic disturbance investigation.

 

Hate Crime

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.

 

Hazing

State v. Zascavage, 216 S.W.3d 495 (Tex.App. -  Fort Worth 2007). Section 37.182(a)(3) of Education Code was unconstitutional.

 

Identification, Pre-Trial Photo, Taint

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.

 

Immunity Agreements, Court Approval

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.

 

Impeachment, Calling Witness For Purpose of Impeachment

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.

 

Impeachment, Complaining Witness Qualifies as “Party Opponent”

Willover v. State, 38 S.W.3d 672 (Tex. App. -  Houston[1st. Dist.] 2000).  A complaining witness (her an alleged sexual assault victim) is a “party” for purposes of statements made by party opponents. Thus, no need to establish predicate of prior inconsistent statement. Update: Reversed at 70 S.W.3d 841 (Tex.Crim.App. 2002).

 

Impeachment, Hearsay Declarant, Rule 806

Enriquez v. State, 56 S.W.3d 596 (Tex. App. -  Corpus Christi 2001). This is a new one for me: The State puts on an investigator to elicit statements made by the Defendant. The State then introduces three prior convictions of the Defendant on the basis they were impeaching the declarant of the hearsay statement pursuant to Evidence Rule 806. Court reverses only on the basis that the statements didn’t qualify as hearsay.

 

Impeachment, Pending Deferred Adjudication of Defendant, 403

Moreno v. State, 22 S.W.3d 482 (Tex.Crim.App. 1999). Although a Defendant might be shown to have a bias or interest in avoiding conviction if he is currently on deferred adjudication probation, the probative value of evidence of the probation is little and Rule 403 prevents its admission in this case.

 

Impeachment, Pending Deferred Adjudication of State's Witness

Jones v. State, 83 S.W.3d 386 (Tex. App. -  Amarillo).  Trial court erred in not allowing Defendant to impeach State's witness with fact that she was currently on deferred adjudication probation.

 

Impeachment, Pled in Bar Cases

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.

 

Impeachment, Prior Convictions vs. Prior Instances of Misconduct

Dixon v. State, 2 S.W.3d 263 (Tex.Crim.App. 1999). Author's note: This case does not involve a reversal. Nevertheless, it is required reading for an understanding of the distinction between impeaching a witnesses general credibility (you could impeach the Pope if he has a prior conviction under Rule 608) and impeaching a witness based on bias or prejudice in a particular case (if the Pope's friend is on trial).

 

Impeachment, Prior Conviction, Successful Probation

James v. State, 102 S.W.3d 162 (Tex. App. -  Fort Worth 2003). Court erred in allowing into evidence prior conviction that involved a successfully completed probation in violation of Rule 609(c)(2).

 

Impeachment, Prior Conviction, Underlying Facts

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.

 

Impeachment, Prior Conviction Too Prejudicial

Jackson v. State, 11 S.W.3d 336 (Tex. App. - Houston[14th Dist.] 1999). Eleven year old rape conviction should not have been admissible for impeachment purposes because it was too prejudicial , even though there were intermittent convictions that could be used for tacking.

 

Impeachment, Prior Conviction, Remoteness

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).

 

Impeachment, Prior False Accusation, Sexual Abuse *

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).

 

Impeachment, Prior Assault Convictions, Similarity

Pierre v. State, 2 S.W.3d 439 (Tex.App. - Houston [1st Dist.] 1999). Two prior convictions for misdemeanor assault against women (a crime of moral turpitude) should not be admitted in trial for sexual assault since the similarity between past offenses and charged conduct caused probative value not to be outweighed by prejudicial effect.

 

Indictment, Delay Under art. 32.01

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 (Tex. App. -  Austin 2000). Under the old version of 32.01 (that allowed dismissal with prejudice per 28.061), case holds indictment should have been dismissed and further prosecution barred.

 

Ex Parte Mann, 34 S.W.3d 716 (Tex. App. -  Fort Worth 2000). If the Defendant isn’t indicted before the end of the next term of court, the fact that he is indicted before a hearing is held on the 32.01 motion does not render the issue moot.

 

Indictment, Notice

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.

 

Inducing Sexual Performance By A Child

Scott v. State, 173 S.W.3d 856 (Tex.App. -  Texarkana 2005). Insufficient evidence on the element of “inducement”

 

Ineffective Assistance of Counsel (Multiple Cases)

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. - Houston [14th Dist.] 1998). Representing co-defendants, pleading one case so the other can be dismissed, is ineffective as to the pleading defendant.

 

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 (Tex. App. - Corpus Christi 2000). Counsel was clearly ineffective for having his client testify about a prior conviction during guilt-not guilty phase when it was inadmissible. (Since the State couldn’t mention it, there was no need to diffuse the damaging evidence).

 

Ramirez v. State, 13 S.W.3d 382 (Tex. App. - Corpus Christi). Conflict of interest case.

 

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 (Tex. App. - Corpus Christi 2000). Failure to assert double jeopardy claim; failure to have client withdraw guilty plea.

 

Paz v. State, 28 S.W.3d 674 (Tex. App. - Corpus Christi). Failure to communicate State’s offer for plea bargain.

 

Torres v. State, 39 S.W.3d 631 (Tex. App. -  Corpus Christi 2000). Failure to raise “due diligence” defense in MTR proceeding.

 

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 (Tex. App. -  San Antonio 2001). Failure to object to question to probation officer during punishment phase as to whether Defendant would be a good candidate for probation. Probation officer was not an expert.

 

Woods v. State, 59 S.W.3d 833 (Tex. App. -  Texarkana 2001). Ineffective for failing to assist court appointed expert to assist defense pursuant to Ake v. Oklahoma.

 

Jaubert v. State, 65 S.W.3d 73 (Tex. App. -  Waco 2000). Failing to request notice of extraneous offenses or bad acts was ineffective assistance. Rev'd at 74 S.W.3d 1 (Tex.Crim.App. 2002).

 

Ramirez v. State, 65 S.W.3d 156 (Tex. App. -  Amarillo 2001). Counsel's failure to object to prosecutor misstating the use of defense counsel's term "drunk Mexican" was ineffective assistance.

 

Rylander v. State, 75 S.W.3d 119 (Tex. App. -  San Antonio 2002). Ineffective for failing to call expert who could testify that Defendant's autism could effect voluntariness.

 

State v. Williams, 83 S.W.3d 371 (Tex. App. -  Corpus Christi 2002). Failure to fully explain deferred adjudication offer.

 

Goodspeed v. State, 120 S.W.3d 408 (Tex. App. -  Texarkana 2003). Failure to conduct meaningful voir dire AND uses two preemptory strikes on individuals that had already been stricken for cause. Amazing!!! à Reversed at 187 S.W.3d 390 (Tex.Crim.App. 2005).

 

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.

 

Walker v. State, 193 S.W.3d 250 (Tex.App. -  San Antonio 2006) Too many ways to list.

 

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.

 

Lopez v. State, 315 S.W.3d 90 (Tex.App - Houston[1st Dist.] 2010) Failing to object to hearsay witness that corroborated child’s outcry in sexual assault case.

 

Riley v. State, 345 S.W.3d 413 (Tex.App -  Texarkana 2011) Electing jury punishment in hopes of receiving probation when the offense (murder) made Defendant ineligible.

 

Okonkwo v. State, 357 S.W.3d 815 (Tex.App - Houston[14th Dist.] 2011) Failure to request mistake of fact instruction in a forgery case.

 

Villa v. State, 370 S.W.3d 787 (Tex.App- Eastland 2012) Failure to request instruction on medical care defense in aggravated sexual assault of a child case.

 

Enyong v. State, 369 S.W.3d 593 (Tex.App-Houston[1st Dist.] 2012) Failure to advice Defendant that plea would render his deportation virtually certain.

 

Ineffective Assistance of Counsel, Padilla Case, Immigration Consequences

See Ex Parte Tanklevskaya, 361 S.W.3d 86 (Tex.App-Houston[1st Dist.] 2011); Salazar v. State, 361 S.W.3d 99 (Tex.App-Eastland 2011); Elizondo-Vasquez v. State, 361 S.W.3d 120 (Tex.App- Texarkana 2011).

 

Ineffective Assistance of Counsel, Punishment Phase

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.

 

Valencia v. State, 966 S.W.2d 188 (Tex.App. - Houston [1st Dist.] 1998). Counsel was ineffective for failing to object to prosecutor's argument about parole eligibility.

 

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 (Tex. App. -  Corpus Christi 2003). Counsel was "involuntarily absent from a portion of" punishment phase witness.

 

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.

 

Ex Parte Lane, 303 S.W.3d 702 (Tex.Crim.App. 2009). Allowing DEA agent to provide opinions on how many people good get high from dope amount in case and other characteristics of addicted people was error.

 

DeLeon v. State, 322 S.W.3d 375 (Tex.App - Houston[14th Dist.] 2010). Counsel called expert witness, a probation officer, who gave highly inflammatory testimony about risks posed by sex offenders on probation.

 

Injury to a Child, Intentional, Insufficient Evidence

 

Johnson v. State, 121 S.W.3d 133 (Tex. App. -  Fort Worth). Evidence was legally insufficient to support finding that mother intended to cause bodily injury to child by failing to seek medical attention.

 

Injury to a Child, Serious Bodily Injury, Omission, Sufficiency of the Evidence

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).

 

Injury to A Child, Serious Bodily Injury, Substantial Risk Of Death

Stuhler v. State, 218 S.W.3d 706 (Tex.Crim.App. 2007) Insufficient evidence on element of “substantial risk of death.”

 

Injury to the Elderly, Insufficient Evidence of Age

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.

 

Injury to Elderly, Omission

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.”

 

Insanity, Factually Insufficient

Reyna v. State, 116 S.W.3d 362 (Tex. App. -  El Paso 2003). Evidence was factually insufficient to support jury's verdict that Defendant was NOT insane at time of offense.

 

Insufficient Evidence, Details of Indictment Not Proven

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

 

Insufficient Evidence, Fatal Variance Between Indictment and Proof

Roy v. State, 76 S.W.3d 87 (Tex.App. - Houston[14th Dist] 2002). Even after Gollihar, the variance between the indictment and proof was fatal when indictment alleged assault BY a public servant and proof was of an assault AGAINST a public servant.

 

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.

 

Byrd v. State, 336 S.W.3d 242 (Tex.Crim.App. 2011)  The doctrine is not dead after all: The evidence was sufficient to convict the defendant for theft of property when the State alleged that the owner was Mike Morales and not Wal-Mart.  But see Johnson v. State, 364 S.W.3d 292 (Tex.Crim.App.2012) (not a fatal variance to allege assault by hitting with hand with proof showed injury was by throwing against wall.)

 

Cada v. State, 334 S.W.3d 766 (Tex.Crim.App. 2011). Indictment of retaliation against a “witness”  when proof was the complainant was an “informant” was a fatal variance. Those classes of victims were defined different elements of the offense.

 

Interference With Child Custody, Insufficient Evidence

Friedman v. State, 373 S.W.3d 817 (Tex.App-Houston[14th Dist.] 2012).

 

Interpreters

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.

 

Jail Time, Day for Day Credit

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”.

 

Jurisdiction, Felony Court, Misdemeanor Offense

Smith v. State, 40 S.W.3d 701 (Tex. App. -  Waco 2001). I think this case stands for: a defendant will be returned to pre-plea status if he  simultaneously pleads guilty to a felony and a misdemeanor based on two charging instruments since the felony court does not have jurisdiction over the misdemeanor offense. (I have no idea why the felony plea becomes invalid). Cf: Puente v. State, No. 1364-01  (Tex.Crim.App. 2002)

 

Marbut v. State, 58 S.W.2d 239 (Tex. App. -  Waco 2001). If a case is filed as a SJF theft (1500-20000), the court does not lose jurisdiction, per § 12.44(b) of the Penal Code, when the indictment is amended to alleged a Class A theft. However, if the Defendant is then given deferred adjudication, he cannot later be found guilty of a SJF. (Seems obvious).

 

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).

 

Juror, Disqualification, Recognizes Victim After Trial Begins

Franklin v. State, 12 S.W.3d 473 (Tex.Crim.App. 2000). Trial counsel should have been allowed to voir dire a sitting juror once that juror acknowledges that she knows the victim when the question was asked of the panel at the regular voir dire and she innocently failed to make the disclosure. (CA, on remand, reversed case to trial court. See 23 S.W.3d 83).

 

Juror, Excused for Economic Reasons

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).

 

Jury Charge, Commenting on Evidence

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.

 

Jury Deliberations, Alternative

Trinidad v. State, 275 S.W.3d 52 (Tex.App. -  San Antonio 20008). Error to allow alternate juror to enter jury room and be part of deliberations.  Update: Reversed at 312 S.W.3d 23 (Tex.Crim.App. 2010)

 

Jury Deliberations, "Decided By Lot"

107 S.W.3d 85 (Tex. App. -  San Antonio 2003). Jury that agreed to make list of reasons for guilty and reasons for not guilty and decided to be bound by whichever list was longer, was jury misconduct

 

Jury Deliberations, Outside Evidence

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.

 

Jury Discharged Then Reconvened

Cook v. State, 361 S.W.3d 235 (Tex.App-Fort Worth 2012). Odd case. If court incorrectly discharges jury after receiving verdict he may not reconvene them if an error in verdict is noted but remedy is to remand for punishment trial only.

 

Jury Instructions, When Date Of Offense Impacts Applicable Law

Taylor v. State, 288 S.W.3d 24 (Tex.App. - Houston[1st Dist.]  2009) Jury should have been instructed that it could not consider acts committed by Defendant when he was younger than 17. (Sex assault case with multiple acts proven.) Update: Court of Criminal Appeals finds error harmless at 322 S.W.3d 483 (Tex.Crim.App. 2011)

 

Krajcovic v. State, 351 S.W.3d 523 (Tex.App -  Fort Worth 2011).  Jury should have been instructed on the Castle Doctrine when there was a factual dispute whether offense occurred before or after the law’s effective date.

 

Jury Instructions, Culpable Mental State

Chaney v. State, 314 S.W.3d 561 (Tex.App -  Amarillo 2010)  Since murder is a results oriented offense with regards to intentionally or knowingly, it was error to define those terms in the abstract portion of the charge.

 

Jury Instructions, Illegally Obtained Evidence, art. 38.23(a)

Gerron v. State, 57 S.W.3d 568 (Tex. App. -  Waco 2001). Jury should have been instructed as to whether officer developed a reasonable suspicion to stop Defendant in DWI case before officer left his jurisdiction.

 

Vrba v. State, 69 S.W.3d 713 (Tex. App. -  Waco 2002). When Defendant disputes the basis for the traffic stop, instruction should be given regarding the legality of the stop.

 

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.

 

Jury Instructions, Judicial Notice, HGN

O’Connell v. State, 17 S.W.3d 746 (Tex. App. - Austin 2000). It is error to instruct the jury that the court has taken judicial notice that the HGN “test is sufficiently reliable”.

 

Jury Instructions, Parole

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.

 

Jury Instructions, Presumptions

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.

 

Jury Instructions, Reasonable Doubt

Colbert v. State, 56 S.W.3d 857 (Tex. App. -  Corpus Christi 2001).  It was error for trial court to submit reasonable doubt instruction unless State and Defendant agree to it. Wow: This case was tried at a point when Geesa was still could law and Paulsen, 28 S.W.3d 570 had not yet been decided. Update: Case reversed at 108 S.W.3d 316 (Tex.Crim.App. 2003).

 

Jury Instructions, Response to Note

Rogers v. State, 38 S.W.3d 725 (Tex. App. -  Texarkana 2001). No brainer on this one: Jury asks a note wishing to inquire into how many years equals “life”. Judge responds with “The Defendant must serve a minimum of 30 calender years before … eligble for parole).

 

Jury Instruction, Threats By Decedent, Murder Case

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).

 

Jury Notes, Trial Court's Oral Response

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.

 

Jury Qualifications, Related to Punishment Phase Extraneous Offense Victim

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 should be the basis for a defense motion for mistrial even if juror claims she can be fair and impartial. Interestingly, the error of not granting the motion will effect punishment only since juror did not know about the extraneous incident until after the return on the guilty verdict.

 

Jury Selection, Range of Punishment

Cardenas v. State, 305 S.W.3d 773 (Tex.App. -  Fort Worth 2009). Rare circumstances where error preserved and judge failed to strike jurors for not being to “fairly consider . . . as little as five years in prison and give probation as an appropriate punishment.” Edit: Affirmed 325 S.W.3d 179 (Tex.Crim.App. 2010)

 

Waller v. State, 353 S.W.3d 257 (Tex.App -  Fort Worth 2011) Court erred in not striking two jurors who could never  consider minimum punishment.

 

Jury, Verdict Less Than 12, “Disabled”

Valez v. State, 952 S.W.2d 622 (Tex.App. - Houston [14th Dist.] 1997). After juror was excused for having difficulty with the English language, trial could not proceed with eleven jurors even with consent of defendant. (Note: this appears to be superseded by statutory amendment to CCP art. 36.29 effective 9/1/97).

 

Reyes v. State, 2 S.W.3d 749 (Tex.App. - Houston [14th Dist.] 1999), Juror was not "disabled" under the statute by indicating that she feared retaliation by the Defendant.

 

Rivera v. State, 12 S.W.3d 572 (Tex. App. - San Antonio 2000). Juror who was excused after having contact with Defendant’s family during trial was not “disabled”.

 

Castandea v. State, 28 S.W.2d 685 (Tex. App. - Corpus Christi). If juror is excused during punishment phase, trial cannot proceed without consent of defendant but if error is committed by going forward, remand is for punishment phase only.

 

Chavez v. State, 34 S.W.3d 692 (Tex. App. -  Houston[14th Dist.] 2000). If a juror becomes disabled after the charge has been read and the defendant requests a mistrial, it must be granted.

 

McClellan v. State, 143 S.W.3d 395 (Tex.App. -  Austin 2004).  Excusing a juror under 36.29 was improper when jury had been empanelled but not yet sworn.

 

Jury, Waiver of

Garza v. State, 61 S.W.3d 585 (Tex. App. -  San Antonio 2001). In this trial before the court, the failure to have written jury waiver (even though Court made Conclusions of Law that defendant did not was jury trial), was error.

 

Jury, Withdrawing Waiver of

Green v. State, 36 S.W.3d 211 (Tex. App. -  Houston[14th Dist.] 2001). Court erred when court failed to grant Defendant’s request to withdraw his waiver of jury trial on the day case was set for bench trial and where Motion for Continuance was granted.

 

Juveniles, Confessions

Diaz v. State, 61 S.W.3d 525 (Tex. App. -  San Antonio 2001). Confession involuntary when juvenile was improperly warned that the maximum penalty for aggravated assault was one year in jail if he were tried as an adult.

 

Juveniles, Notifying Parents

Tuy Pham v. State, 36 S.W.3d 199 (Tex. App. -  Houston[1st Dist.] 2000). Texas Family Code 52.02(b), which requires the parent of a child taken into custody to be “promptly” notified was violated when child was held for six hours without such notice. Accord: Hampton v. State, 36 S.W.3d 921 (Tex. App. -  El Paso 2001)(Parent notified but not notified as to why the child was in custody). Accord: State v. Simpson, 51 S.W.3d 633 (Tex. App. -  Tyler 2000) rev'd 74 S.W.3d 408 (Tex.Crim.App. 2002), rev'd again on remand, 105 S.W.3d 238 (Tex. App. -  Tyler 2001)

 

Juveniles, Pre Disposition Report, 5th Amendment

In re J.S.S., 20 S.W.3d 837 (Tex. App. - El Paso 2000). A juvenile’s 5th amendment right against self incrimination extends through the disposition hearing, the statements taken in violation of this right and incorporated into a pre-disposition report that is relied upon by the court requires reversal.

 

Juveniles, Revocation, Amended Motion After Term Expires

In re J.A.D. 31 S.W.3d 668 (Tex. App. -  Waco 2000). Even though court can hold hearing on MTR after probation period has expired (so long as it was timely filed), the motion cannot be modifed/amended by the State after the expiration of the probation period.

 

Jury, Waiver, "Substantial Right"

Lowery v. State, 974 S.W.2d 936 (Tex.App. - Dallas 1998). Failure for Defendant to execute a formal waiver of jury constituted reason for reversal.

 

Johnson v. State, 984 S.W.2d 736 (Tex.App. -  Waco 1998). Failure for Defendant to execute waiver, even if judgement recites such was done, effected the Defendant's "substantial right".

 

Trahan v. State, 991 S.W.2d 936 (Tex.App. - Houston [1st Dist.] 1999). Failure to execute written jury waiver is a non-constitutional error that effected a "substantial right". Accord: Sluis v. State, 11 S.W.3d 410 936 (Tex.App. - Houston [1st Dist.] 2000)

 

Kidnapping, Safe Place

Brown v. State, 109 S.W.3d 550 (Tex. App. -  Tyler 2003). Even if victim tricks the Defendant into releasing her in a "safe place",  evidence of same satisfies Defendant burden of production.

 

Lesser Included Offenses

 

Note: The test for determining whether an offense is a lesser included was somewhat modified in Hall v. State, 225 S.W.3d 524 (Tex.Crim.App. 2007)

 

Jones v. State, 962 S.W.2d 96 (Tex.App. - Houston [1st  Dist.] 1997). Trial court erred in failing to submit lesser included offenses of theft and assault in a robbery case. (Evidence for lesser of theft charge was clerk's testimony she witnessed theft and defendant's testimony he only caused bodily injury in self defense. Evidence for assault charge consisted of clerk's testimony regarding assault and defendant's testimony that he did not intend to commit theft). Supplement: Affirmed by Court Criminal Appeals no. 101-98/

 

Chase v. State, 968 S.W.2d 943 (Tex.App. - Eastland 1998). Court erred in failing to submit lesser included offense of manslaughter in this capital murder case.

 

Jordan v. State, 1 S.W.2d 153 (Tex.App. -  Waco 1999). Court erred in failing to submit lesser included offense of aggravated assault in this burglary with intent to commit aggravated assault case. 

 

Moore v. State, 969 S.W.2d 4 (Tex.Crim.App.  1998). Clarifies law that a pre-1994 offense of voluntary manslaughter (sudden passion) crime can be a lesser included offense of murder.

 

Lofton v. State, 6 S.W.3d 796 (Tex. App. - Austin 1999). Court should have submitted resisting arrest as lesser offense of assault on public servant. Update: Reversed at No. 0085-00 (May 2, 2001).

 

Ferrel v. State, 16 S.W.3d 861 (Tex.App. - Houston [14th Dist.] 2000). Defendant should have received lesser included charge of assault in this aggravated assault case.

 

Upchurch v. State, 23 S.W.3d 536 (Tex.App. - Houston [1st Dist.] 2000). Defendant should have received lesser included charge of possession in this possession with intent to deliver case.

 

Hall v. State, 81 S.W.3d 927 (Tex. App. -  Dallas 2002). Aggravated Assault by Threat is not a lesser included offense of murder. Update: Aff’d with a significant case on lesser includeds in 225 S.W.3d 524 (Tex.Crim.App. 2007)

 

Ray v. State, 106 S.W.3d 299 (Tex.App. - Houston[1st Dist] 2003). Evidence supported lesser included instruction on State Jail Felony Theft in the Third Degree Felony Theft case when some evidence indicated value of stolen property was less than $20,000.

 

Hampton v. State, 109 S.W.3d 437 (Tex.Crim.App. 2003). Defendant objected to lesser offense charge of sexual assault but was found guilty of that charge. State said there was conflicting evidence on issue deadly weapon. Court held that lesser should not have been included because there was no conflict as to whether weapon was used.

 

Nash v. State, 115 S.W.3d 136 (Tex. App. -  Texarkana 2003). Since there was dispute as to whether deadly weapon was used or exhibited, trial court should have submitted lesser included instruction of robbery in this aggravated robbery case.

 

Campbell v. State, 128 S.W.3d 662 (Tex. App. -  Waco 2003). Resisting arrest with a deadly weapon  (PC 38.03(a)) was a lesser included offense of aggravated assault by threat with use or exhibit of deadly weapon.

 

Schroeder v. State, 133 S.W.3d 654 (Tex.App. -  Corpus Christi 2003).  Lesser included offense of manslaughter should have been submitted in this murder case.

 

Smith v. State, 135 S.W.3d 259 (Tex.App. -  Texarkana 2004). Assault by threatening another with imminent bodily injury was lesser included offense of attempted sexual assault.

 

Issac v. State, 167 S.W.3d 469 (Tex.App. - Houston[14th Dist]  2005). Deadly conduct was lesser included offense of aggravated assault with a deadly weapon. Accord: Blissit v. State, 185 S.W.3d 51 (Tex.App. -  San Antonio 2005).

 

Trejo v. State, 242 S.W.3d 48 (Tex.App. - Houston[14th Dist]  2007) Aggravated assault was not a lesser included offense of aggravated sexual assault.

 

Jones v. State, 280 S.W.3d 294 (Tex.App. -  Amarillo 2007) Lesser included offense of theft should have been submitted to jury in Agg Robbery case.

 

Salazar v. State, 284 S.W.3d 874 (Tex.Crim.App. 2009) Even under the test modified by Hall, criminal trespass is lesser included of burglary of a habitation even though “without notice” is not element of statutory language of burglary. (They are already backing off.)

 

Williams v. State, 314 S.W.3d 45 (Tex.App -  Tyler 2010) Theft  in Aggravated Robbery case.

 

Sweed v. State, 351 S.W.3d 63 (Tex.Crim.App. 2011). Theft in Aggravated Robbery case. “More than scintilla of evidence the defendant did not pull knife.”

 

Hicks v. State, 372 S.W.3d 649 (Tex.Crim.App.2012) Reckless aggravated assault is lesser included offense of intentional or knowingly aggravated assault.

 

Lesser Included Offense, Jury Charge, Expansion of Indictment

Castillo v. State, 7 S.W.3d 253 (Tex.App. -  1999). When indictment alleged intentional injury to a child by striking the child, the jury charge on the lesser included offense of reckless injury to a child could not be expanded to include "shaking" since that act was not alleged in indictment.

 

Lesser Included Offense, Reformation When Evidence Insufficient on Greater Charge

Hicks v. State, 999 S.W.2d 417 (Tex.App. -  Waco 1999).  Judgment on appeal cannot be reformed to reflect a conviction for the lesser included offense of Indecency with a Child even when evidence supports it (1) the only charge submitted to the jury is Sexual Assault, (2) evidence is insufficient on that charge, and (3) no lesser included offense submitted to jury. (Facts of this case are unusual since charge contained a count of Indecency that had been dismissed before trial).

 

Bowen v. State, 374 S.W.3d 427 (Tex.Crim.App.2012) Big case. Conviction may be reformed to lesser included offense on appeal if evidence justifies regardless of whether either side requested a lesser charge.

 

Limitations, Tolling Due to Pending Indictment

Hernandez v. State, 74 S.W.3d 73 (Tex. App. -  Eastland 2002). When second indictment (an attempted reindictment) for possession of methamphetamine was filed after the running of limitations, previous indictment alleging the same date but charging possession of amphetamine did not toll limitations. Update: Reversed at 127 S.W.3d 768 (Tex.Crim.App. 2004).

 

Limitations, Waiver

Phillips v. State, 362 S.W.3d 606 (Tex.Crim.App.2011) If a prosecution is absolutely barred by limitations, it can be raised for first time on appeal.

 

Manufacturing Cont. Sub, Nazi Lab, Insufficient Evidence

Brumit v. State, 42 S.W.3d 201 (Tex. App. -  Fort Worth 2001). Evidence was insufficient to support conviction for manufacturing of aggregate amount of methamphetamine when no finished product was found and the remnants of the lab don’t provide enough information as to how much, if any, could have been produced.

 

Honeycutt v. State. (07-02-0504-CR) A “must be caught in the act” case.

 

Hammock v. State, 211 S.W.3d 874 (Tex.App. -  Texarkana 2006). A somewhat rare 481.124 prosecution (possession of certain chemicals with intent) where the State relied on “immediate precursors” that weren’t listed as “immediate precursors.”

 

Misapplication of Fiduciary Duty

Aiken v. State, 36 S.W.3d 131 (Tex. App. -  Austin 2000). There was no “substantial risk of loss” in this case involving a contractor when 10% of the draw was retained pursuant to the Property Code.

 

Skillern v. State, 355 S.W.3d 263 (Tex.App - Houston[1st Dist.] 2011) Insufficient evidence in this case involving money withdrawn from joint account of  granddaughter and grandfather.

 

Mistake of Fact

Granger v. State, 5 S.W.3d 36 (Tex.Crim.App. 1999). It is not for the trial judge to determine whether the Defendant's mistaken belief of fact was "reasonable".  If there is any evidence raising the issue, regardless of its plausibility, an issue should be submitted to the jury. (Murder case involving shooting into a car with defense being that Defendant did not know car was occupied).

 

Mistrial, False Testimony

Yates v. State, 171 S.W.3d 215 (Tex.App. - Houston[1st Dist.]  2005). Trial court should have granted mistrial  after state’s expert testified falsely. (Famous Andria Yates case).

 

Mistrial, Occurring During Punishment On Plea of Guilty

Huseman v. State, 17 S.W.3d 704 (Tex. App. - Amarillo). When a Defendant enters a plea of guilt and goes to the jury for punishment, a mistrial declared during the trial restores the Defendant to his original position. Thus, his guilty plea is void.

 

Mistrial, Racial Comment by State

Bryant v. State, 25 S.W.3d 924 (Tex. App. - Austin 2000). Mistrial should have been granted when State asked an African-American Defendant on cross “Did you get a white girl . . . pregnant . . . in May of ‘99”.

 

Money Laundering, Insufficient Evidence

Deschenes v. State, 253 S.W.3d 374 (Tex.App. -  Amarillo 2008) A rare money laundering prosecution ends with a reversal.

 

Murder, Insufficient Evidence

Marvis v. State, 3 S.W.3d 68 (Tex. App. - Houston[14th Dist.] 1999]. When victim was shot in the head by a third person at the same time as the Defendant shot the victim in the abdomen, and the evidence showed at the time emergency personnel arrived, the Defendant was dead due to the shot to the head and not the shots to the abdomen, the evidence is insufficient to convict the Defendant as a principal.

 

Clayton v. State, 169 S.W.3d 254 (Tex.App. -  Corpus Chrisit 2005). Defendant’s bloody fingerprint at murder scene, with nothing more, is not sufficient to convict. Update: Rev’d at 235 S.W.3d 772 (Tex.Crim.App. 2007).

 

Gross v. State, 352 S.W.3d 238 (Tex.App - Houston[14th Dist.] 2011). Insufficient in law of parties case where Defendant drove shooter away from scene.

 

Necessity, Defense of

Rivera v. State, 948 S.W.2d 365 (Tex.App. - Beaumont 1997, no pet. hist.) The defense of necessity is not unavailable as a matter of law for the offense of possession of a deadly weapon in a penal institution. Disagreeing with January v. State, 811 S.W.2d 621 (Tex.App. - Tyler 1991, pet. ref'd).

 

Pennington v. State, 54 S.W.3d 852 (Tex. App. -  Fort Worth 2001). Defendant was entitled to necessity jury instruction when she testified she possessed drugs in order to keep them away from a thirteen year old.

 

Hubbard v. State, 133 S.W.3d 797 (Tex.App. -  Texarkana 2004). Defendant need not necessarily admit he committed charged offense in order to obtain necessity instruction. (Questionable holding)

 

Bowen v. State, 162 S.W.3d 226 (Tex.Crim.App. 2005). Necessity defense is legally available in resisting arrest case. On remand, harm was found: 187 S.W.3d 744 (Tex.App. -  Fort Worth 2006).

 

Juarez v. State, 308 S.W.3d 398 (Tex.Crim.App. 2010). A Defendant must admit to conduct to get necessity instruction. And Defendant’s testimony that he “somehow bite down” on officer’s finger but that he did not do it “intentionally, knowingly or recklessly” was sufficient admission in the aggravated assault case.

 

New Trial, Motion For, Appeal by State

State v. Lasalle, 135 S.W.3d 94 (Tex.App. -  Corpus Christi 2003).  Court can grant a new trial “in the interest of justice” even when Defendant’s motion for new trial did not raise that as a ground.

 

State v. McKnight, 217 S.W.3d 596 (Tex.App. -  San Antonio 2006). Court did not err in granting a MNT when Defendant was convicted of lesser included offense of disorderly conduct and court determined that it was not legally a lesser included. (Indecent exposure charge, disorderly conduct was lesser.)

 

 

New Trial, Motion For, Failure to Record Bench Conference

State v. Herndon, 215 S.W.3d 901 (Tex.Crim.App. 2007). Trial court has right to grant MNT for failure of court reporter to record bench conference regarding alleged improper State’s closing argument.

 

New Trial, Motion For, Hearing Requirement

Torres v. State, 4 S.W.3d 295 (Tex.App. - Houston [14th Dist.] 1999). Odd case. Trial court abuses discretion in not holding a hearing on a motion for new trial when (1) motion alleges ineffective assistance and (2) the motion is overruled without a hearing by a signed order. (Apparently a different resulted is warranted if motion is overruled by operation of law).

 

New Trial, Motion for, Newly Discovered Evidence

State v. Weiss, 3 S.W.3d 342 (Tex. App. - Beaumont 1999). Here’s a rare case where the trial court ordered a new trial based upon newly discovered evidence and the order was upheld on this appeal.

 

Keeter v. State, 43 S.W.3d 667 (Tex. App. -  Waco 2001). When the only witness in a sexual abuse recanted after the trial, the trial court should have granted a new trial. Update: Reversed at 74 S.W.3d 31 (Tex.Crim.App. 2002).

 

Notice, Texas Rules of Evidence 404

Neuman v. State, 951 S.W.2d 538 (Tex.App. - Austin 1997). Three day notice of intent to offer evidence of “other crimes” under Rule 404(b) is unreasonable.

 

Note: Court of Criminal Appeals has held that copies of witness statements that describe extraneous acts/offenses will suffice in lieu of "explicit intent to introduce extraneous offenses". Hayden v. State, 66 S.W.3d 269 (Tex.Crim.App. 2001).

 

Nunc Pro Tunc, Appeal

Blanton v. State, 369 S.W.3d 894 (Tex.Crim.App.2012) A nunc pro tunc order is an appealable order.

 

Nunc Pro Tunc, Deadly Weapon Finding

Fanniel v. State, 73 S.W.3d 557 (Tex.App. - Houston[1st Dist] 2002). Since judge announced on the record that he "did not intend" to make a deadly weapon finding at the time of the adjudication hearing, court could not come back after 30 days and make such a finding on the basis of nunc pro tunc.

 

Official Misconduct, Statute Unconstitutional as Applied

Margraves v. State, 996 S.W.2d 290 (Tex.App. - Houston [14th Dist.] 1999). Texas Penal Code 39.02(a)(2) was unconstitutional as applied when Defendant allegedly used government plane for "mixed use" of both business and pleasure.

 

Official Oppression

Sanchez v. State, 974 S.W.2d 307 (Tex.App. - San Antonio 1998). "Sexual harassment" element of Official Oppression Statute is unconstitutionally vague.

 

Open Meetings, Sufficiency

Cooksey v. State, 377 S.W.3d 901 (Tex.App-Eastland 2012). For violation of knowingly disclosing contents of a closed meeting, State must prove meeting was “lawfully closed.”

 

Open Pleas, Defendant Invoking 5th Amendment in Punishment Phase

Carroll v. State, 999 S.W.2d 630 (Tex.App. -  Fort Worth 1999). Watch this one. A Defendant who waives the 5th in connection with guilty plea can still invoke that right at "punishment phase" of an open plea despite its "unitary" nature. Aff’d: 42 S.W.3d 129 (Tex.Crim.App. 2001) and rev'd again on remand at 68 S.W.3d 250

 

Opening Statement, Denial of

McGowen v. State, 25 S.W.3d 741 (Tex.App. - Houston [14th Dist.] 2000). It was error to deny the Defendant an opening statement after the State had rested its case in chief.

 

Organized Crime, "Combination"

Nguyen v. State, 977 S.W.2d 450 (Tex.App. - Austin 1998) aff'd 1 S.W.3d 694 (Tex.Crim.App. 1999).  In order to be convicted of organized crime, the members of the group must collaborate in carrying on criminal activities (plural) and not just a single offense.  Followed: Ross v. State, 9 S.W.3d 878 (Tex. App. - Austin 2000), Smith v. State, 36 S.W.3d 908 (Tex. App. -  Houston[1st Dist.] 2001), Adams v. State, 40 S.W.3d 142 (Tex. App. -  Houston[14th Dist.] 2000 See also Carlson v. State, 71 S.W.3d 524 (Tex. App. -  Austin 2002).

 

Organized Crime, Drugs, Flawed Indictment

Garcia v. State, 32 S.W.3d 328 (Tex. App. -  San Antonio 2000).  This case notes that when an organized crime charge is based upon drugs, the indictment must state, and the state must prove, the drugs were possessed “through forgery, fraud, misrepresentation, or deception.”. See Texas Penal Code § 71.02(a)(5)

 

Organized Crime, Insufficient Evidence

Arrendondo v. State, 270 S.W.3d 676 (Tex.App. -  Eastland 2008) Case finding evidence insufficient to establish organized crime in sexual assault case.

 

Roberson v. State, 311 S.W.3d 642 (Tex.App – Eastland 2010). Insufficient evidence of organized crime charge in forgery case.

 

Organized Crime, "Overt Act"

McLaren v. State, 2 S.W.3d (Tex.App. -  El Paso 1999). To be guilty of organized crime, the Defendant must personally commit an overt act. An overt act by another member of the combination cannot be attributable to all members of the combination.

 

Parties, Insufficient Evidence

Pesina v. State, 949 S.W.2d 374 (Tex.App, San Antonio 1997) Defendant could not be convicted as a party for acts committed after the offense of murder was completed even if the jury charge authorized a conviction on that basis.  (Good discussion of the law of parties. However. Sufficiency of the evidence review is probably outdated in light of Malik v. State (Tex.Crim.App. - September 9, 1997)).

 

Wooden v. State, 101 S.W.3d 542 (Tex. App. -  Fort Worth 2003). Evidence was insufficient to prove Defendant was guilty as a party to offense of aggravated robbery.

 

Rodriguez v. State, 129 S.W.3d 551 (Tex.App. - Houston[1st Dist.] 2003). Since evidence did not establish that Defendant knew co-Defendant was going to use a deadly weapon during the course of robbery, acquittal must be entered.

 

Schiffert v. State, 157 S.W.3d 491 (Tex.App. -  Fort Worth 2004). Insufficient evidence in this murder as a party case.

 

Vodochodsky v. State, 158 S.W.3d 502 (Tex.Crim.App. 2005) Insufficient evidence in this capital murder as a part case.

 

Parties, Jury Charge, Application Paragraph

Blanco v. State, 959 S.W.2d 226 (Tex.App. - El Paso 1996). When application paragraph did not include the law of parties, Defendant could only be convicted as principal despite the fact that law of parties was provided in the abstract.  Accord: Green v. State, 233 S.W.3d 72 (Tex.App. - Houston[14th Dist] 2007); Vasquez v. State, 342 S.W.3d 750 (Tex.App - Houston[14th Dist.] 2011)

 

Parties, Jury Charges, Application Paragraph, Language Error

Marvis v. State, 3 S.W.3d 68 (Tex. App. - Houston[14th Dist.] 1999]). When the charge read “either acting alone or together” instead of “either acting alone or as a party” the State’s burden of proof was lowered. If the evidence would, however, been sufficient under a hypothetically correct jury charge, a remand, and not an acquittal, is the appropriate remedy.

 

Perjury, Insufficient Evidence

Hardy v. State, 187 S.W.3d 678 (Tex.App. - Houston[14th Dist]  2006). Odd. False PC affidavit could not serve basis for perjury conviction due to their being no witness that Defendant appeared before notary public and was actually sworn in. Update: Rev’d at 213 S.W.3d 916 (Tex.Crim.App. 2007)

 

Plea Agreements, Court Imposes Deferred Adjudication

Ervin v. State, 955 S.W.2d 416 (Tex.App. - San Antonio 1997). Defendant pled guilty with an agreement from the prosecutor that the judge’s sentence could not exceed 10 years. The judge instead deferred the defendant’s guilt and placed him on probation for the second degree felony. Later the defendant’s guilt was adjudicated after he violated his probation and the court imposed a sentence of 20 years. On appeal,  the appellate court ruled it had jurisdiction and held that the trial court was limited to a cap of 10 years.

 

Plea Agreements, Court Is Bound Upon Acceptance

Wright v. State, 158 S.W.3d 590 (Tex.App. -  San Antonio 2005).  Once court accepts a plea agreement (in this case the State agreed to cap the maximum in an open plea), the court cannot later rescind that acceptance (in this case, a second judge who was to do the punishment)

 

Plea Agreements, What Court Can Do If Defendant Fails To Show For Sentencing

Moore v. State, 262 S.W.3d 99 (Tex.App. -  Fort Worth 2008). Unique facts but stands for the proposition that if the Defendant is going to be given some time to get affairs in order after entering plea but before sentencing, it’s good to have a firm agreement as to what the Court can do if he fails to appear. Update: Reversed at 295 S.W.3d 329 (Tex.Crim.App. 2009)(failing to preserve error grounds.)

 

Plea Negotiations, Admissibility

Taylor v. State, 19 S.W.3d 858 (Tex. App. - Eastland 2000). A statement made by a Defendant during plea negotiations is not admissible, not even for impeachment.

 

Bowley v. State, 280 S.W.3d 530 (Tex.App. -  Amarillo 2009) Idiot prosecutor asked Defendant if the reason he was not pleading guilty this time as he had in the past was because he could not reach a plea bargain. Edit: Rev’d at CCA because Defendant had opened the door.

 

Pleas, Failure to Admonish on Immigration Consequences

Hurley v. State, 130 S.W.3d 501 (Tex.App. -  Dallas 2004). Failure to admonish on immigration consequences of plea, even if statutory error and not constitutional error, required reversal. See also Vannortrick v. State, 191 S.W.3d 490 (Tex.App. -  Dallas 2006); Fakeye v. State, 192 S.W.3d 112 (Tex.App. -  Fort Worth 2006.) Stevens v. State, 278 S.W.3d 826 (Tex.App. - Houston[14th Dist]  2009)

 

Pleas, Failure to Admonish on Sex Offender Registration

Shankle v. State, 59 S.W.3d 756 (Tex. App. -  Austin 2001). Failure to admonish Defendant, as required by statute, about sex offender registration requirements required reversal. Contra holdings in Ducker v. State, 45 S.W.3d 791 (Tex. App. -  Dallas 2001, no pet.) & Alvarez v. State, 63 S.W.3d 578 (Tex. App. -  Fort Worth 2001). Update: Court of Criminal Appeals decided issue in Anderson v. State, 182 S.W.3d 914 (Tex.Crim.App. 2006). It looks like in some situations it will be reversible error – most notably a standard plea bargain case.

 

Pleas, Failure to Admonish on Range of Punishment Admonishment, Constitutional Error

High v. State, 991 S.W.2d 925 (Tex.App. - Houston [1st Dist.] 1999). The failure to admonish a Defendant as to the applicable range of punishment is a "constitutional error" requiring a reversal unless no harm is shown beyond a reasonable doubt. Update: Probably not good law under Aguirre-Mata, 125 S.W.3d 473 (Tex.Crim.App. 2003)).

 

Pleas, Independent Evidence Of Guilt

Baggett v. State, 342 S.W.3d 172 (Tex.App -  Texarkana 2011)  The plea of “guilty” does not satisfy requirement of independent proof of guilt. There was no written judicial confession or stipulation and the judge did not ask if she was pleading guilty because she is guilty.

 

Pleas, Opportunity to Withdraw

Holland v. State, 112 S.W.3d 251 (Tex. App. -  Austin 2003). Defendant entered plea of guilty pursuant to a plea agreement of five years ID-TDCJ. The court, in giving him 60 days to get his affairs in order, accepted his guilty plea, reset the case, didn't formally find him guilty, and threatened to sentence him to life in prison if he didn't show up. Defendant failed to show up. Court then sentenced him to 30 years in prison. Held: Defendant had right to withdraw guilty plea since plea bargain not followed.

 

Lopez v. State, 996 S.W.2d 893 (Tex.App. -  Corpus Christi 1999). Where plea agreement included $500 per month in restitution, Defendant should have been allowed an opportunity to withdraw her plea when judgment reflects restitution at $1,460 per month. Court did not follow plea agreement.

 

Zinn v. State, 35 S.W.3d 283 (Tex. App. -  Corpus Christi 2000). Defendant has absolute right to withdraw plea if court does not follow express terms of plea bargain.

 

Pleas, Involuntary

Flowers v. State, 951 S.W.2d 883 (Tex.App. - San Antonio 1997). In a plea bargain situation wherein the State agrees to a probated sentence and to remain silent on defendant’s request for deferred adjudication, a defendant’s belief (based upon advise from his lawyer) that he could not receive jail time, rendered the plea involuntary when the court, although accepting the agreement, ordered jail time as a condition of probation.

 

Rivera v. State, 952 S.W.2d 34 (Tex.App. , San Antonio 1997). Defendant’s plea was involuntary when it was uncontroverted that he believed he could withdraw his plea after a trial court took the case under advisement and ordered a PSI but before sentence was pronounced.

 

Burke v. State, 80 S.W.3d 82 (Tex. App. -  Fort Worth 2002). Plea to recklessly causing aggravated assault was involuntary when Defendant was unaware that State would have to prove that he knew a traffic control signal was red before he ran the red light while intoxicated.

 

Pleas, Involuntary, Interpreter

Aleman v. State, 957 S.W.2d 592 (Tex.App. - El Paso, 1997). Plea was involuntary when court appointed interpreter merely translated plea papers and left without advising court that Defendant was dissatisfied with the agreement. (Actual plea took place with the aid of Spanish speaking prosecutor).

 

Pleas, Stipulation, No "Waiver and Consent"

Camacho v. State, 968 S.W.2d 388 (Tex.App. - Corpus Christi 1997). In an odd case where a motion to suppress was transformed into a bench trial, the defense lawyer's agreement to stipulate to certain elements of the state's case was insufficient in the absence of a written waiver and consent to stipulate per art. 1.15.

 

Possession of  a Dangerous Drug, Constitutionality

Goonan v. State, 334 S.W.3d 337 (Tex.App -  Fort Worth 2011). Case not reversed but Justic Dauphinot’s dissent about the confusing Dangerous Drug law at Health and Safety Code §453.001 and how it should be challenged is a must read.

 

Possession Weapon by Felon, Prior Probation  Discharged Under 42.12 § 20(a)

Cueller v. State, 40 S.W.3d 724 (Tex. App. -  San Antonio 2001). A Defendant who has had a successfully completed probation that was discharged under 42.12 §20(a), the weird section that converts a straight probation into the equivalent of a deferred, is not a prior convict for purposes of the possession of weapon by felon statute. Aff'd at 70 S.W.3d 815 (Tex.Crim.App. 2002)

 

Possession of Weapon by Felon, Stipulation to Prior Conviction

McIlroy v. State, 188 S.W.3d 789 (Tex.App. -  Fort Worth 2006). This is not a reversal case but important: If the Defendant wishes to stipulate to the prior conviction, the State is precluded from reading the details about the prior conviction that are set forth in the indictment.

 

Prohibited Substance in Correctional Facility

Brown v. State, 35 S.W.3d 183 (Tex. App. -  Waco 2000, PDR granted).

A Defendant does not act “voluntarily” within the meaning of the Prohibited Substance in a Correctional Facility when he is arrested and taken to jail and subsequently found to have a controlled substance in his pocket. Update: Reversed by CCA 89 S.W.3d 630 (Tex.Crim.App. 2002)

 

Woodard v. State, 355 S.W.3d 102 (Tex.App - Houston[1st Dist.] 2011) Evidence insufficient when Defendant was handcuffed and officer brought her purse in the jail after arrest for domestic violence.

 

Prosecutorial Vindictiveness

Neal v. State, 117 S.W.3d 301 (Tex. App. -  Texarkana 2003). You don't see this very often: State's prosecution of Defendant violated the doctrine of prosecutorial vindictivenss.

 

Provocation, Charge

Mendoza v. State, 349 S.W.3d 273 (Tex.App -  Dallas 2011).  Charge on provocation should not have been given in murder case. No evidence to support it.

 

Punishment, Enhancement Allegations, Defendant’s Plea

Hernandez v. State, 190 S.W.3d 856 (Tex.App. -  Corpus Christi). Odd case, State proves up enhancement allegations but forgot to have Defendant enter plea to enhancements. Defendant then enters plea at the END of punishment hearing. Held: State failed to prove enhancement allegations since it did not “reoffer” the punishment evidence introduced before the plea. (This case will never hold up).

 

Punishment, Enhancement Allegations, Drug Free Zone

Ingram v. State, 213 S.W.2d 515 (Tex.App. -  Texarkana 2007). No evidence that playground was “open to the public.”

 

Punishment, Enhancement Allegations, Finality

Allen v. State, 236 S.W.2d 818 (Tex.App. -  Waco 2007). Case basically holds that harmless error review does not apply when State fails to prove finality of judgment (which had a notice of appeal contained in it.)

 

Williams v. State, 309 S.W.3d 124 (Tex.App. -  Texarkana 2010) Even if Defendant pleads true to enhancement, if State enters judgment into evidence and judgment shows the conviction was not final due to notice of appeal, the evidence is insufficient on the enhancement allegation.

 

Punishment, Enhancement Allegations, Juvenile Adjudications

Sims v. State, 84 S.W.3d 768 (Tex. App. -  Dallas 2002). Only felony juvenile adjudications that occurred for conduct occurring after January 1, 1996 may be used for enhancement per Texas Family Code § 51.13(d).

 

Punishment, Enhancement Allegations, Notice

Pelache v.State, 294 S.W.3d 248 (Tex.App. -  Corpus Christi 2009) Even though the court of criminal appeals has allowed enhancement notices to be filed six days before trial, due process is violated when they are filed after the guilty verdict but before judge sentencing at a later date.

 

Punishment, Enhancement Allegations, Notice, Retrial

McNatt v. State, 188 S.W.3d 198 (Tex.Crim.App. 2006). If a reversal occurs because an enhancement allegation was not timely asserted, the State is not barred from using the enhancement allegation on remand. (Side note: Some courts of appeal must not realize that rule. Pelache v. State, 294 S.W.3d 248 (Tex.App. -  Corpus Christi 2009)

 

Punishment, Enhancement Allegations, Pleading

Throneberry v. State, 109 S.W.3d 52 (Tex. App. -  Fort Worth 2003). Although enhancement allegations need not be pled in the indictment, they still must be pled. A letter to counsel does not suffice.

 

Fairrow v. State, 112 S.W.3d 288 (Tex. App. -  Dallas). State's filing of Notice of Extraneous offenses is not a sufficient pleading for enhancement purposes. (Note: Even the prosecutor didn't believe the Defendant had been enhanced, Judge Harold Entz took it upon himself to enhance the Defendant by "liberally" construing the Penal Code).

 

Punishment, Enhancement Allegations, State Jail

Campbell v. State, 49 S.W.3d 874 (Tex.Crim.App. 2001).  A person convicted of a state jail felony cannot be enhanced to a second degree under 12.42(a)(2) with two prior state jail felony convictions even if they are in sequential order.  An unaggravated state jail felony cannot be used for general enhancment per 12.42(e). Followed: Fite v. State, 60 S.W.3d 314 (Tex.App. - Houston[14th Dist] 2001).

 

Fortier v. State, 105 S.W.3d 697 (Tex. App. -  Amarillo 2003). A second degree burglary could not be enhanced to first degree with a state jail felony prior conviction. Note: even though judge assessed punishment at 17 years (within the range of a second degree felony), case was remanded for punishment phase.

 

Punishment, Enhancement Allegation, Sequential, Finality

Colvin v. State, 54 S.W.3d 82 (Tex. App. -  Texarkana 2001). Good example of a Defendant having multiple prior convictions but not enhanceable as a habitual offender when there are not two prior conviction with one having become final before the second one was committed.

 

Mikel v. State, 167 S.W.3d 556 (Tex.App. - Houston[14th Dist]  2005). Even if Defendant pleads “true” to an enhancement paragraph, he may challenge the sufficiency of the evidence if the record affirmatively shows the judgment should not have been used for enhancement because of its date or its finality.

 

Milburn v. State, 201 S.W.3d 749 (Tex.Crim.App. 2006). A conviction is not “final” if there is still time to file notice of appeal. (Case was actually discussing whether Defendant could be probation eligible instead of discussing enhancements, but reasoning is same.)  See also Jordan v. State, 36 S.W.3d 871 (Tex.Crim.App. 2001).

 

Punishment, Enhancement Allegations, Theft

Freeman v. State, 970 S.W.2d 55 (Tex.App. - Tyler 1998). A defendant charged with felony theft by having two prior theft convictions may not be further enhanced under section 12.42 by an additional felony theft conviction.

 

Punishment, Enhancement, Proof of Prior Conviction

Cruz v. State, 346 S.W.3d 601 (Tex.App -  El Paso 2009).  State proved up that defendant was same man as identified in a bookin packet, but failed to prove that the bookin packet, which was not admitted into evidence, was sufficiently associated with the prior judgment.

 

Prihoda v. State, 352 S.W.3d 796 (Tex.App -  San Antonio 2011). Certified copy of judgment in evidence is not enough even if officer slipped in that he ran Defendant’s history and he had a prior DWI.

 

Punishment, State Jail Felonies, Finality

Jordan v. State, 36 S.W.3d 871 (Tex.Crim.App. 2001). The proposition is this: Under the old statutory scheme, a state jail felon must be probated unless he had “previously [been] convicted of a felony”.  The prior conviction must be “final”.  In this context, “final” means that the prior conviction is not so recent as to still be subject to an appeal or motion for new trial.

 

Punishment, State Jail Felonies, Mandatory Probation After MTA

May v. State, 106 S.W.3d 375 (Tex. App. -  Corpus Christi 2003).  Under the original state jail felony law that mandated probation, a Defendant placed on deferred adjudication who was subsequently adjudicated, could only be placed on straight probation and could not be sentenced to incarceration in a state jail.  Contra: Sawyer v. State, 294 S.W.3d 862 (Tex.App. -  Beaumont 2009). (And see amendments to 42.12 § 15 in 2007).

 

Punishment Evidence, Deferred Adjudication

Davis v. State, 952 S.W.2d 20 (Tex.App. - San Antonio 1997). Although it is permissible to allow the jury to hear that the defendant is currently serving a deferred adjudication probation, it is impermissible to allow the jury to hear the details of the offense. [Update: Case reversed by Court of Criminal Appeals on June 10, 1998]. See also: 951 S.W.2d 531 (details of prior convictions are now admissible after the post-Grunsfeld amendment to art. 37.07).

 

Punishment Evidence, Expert, Psychological

Muhammad v. State, 46 S.W.3d 493 (Tex. App. -  El Paso 2001). Court erred in excluding Defendant’s expert on issues such as whether Defendant would be a good candidate for rehabilitation.

 

Tiede v. State, 104 S.W.3d 552 (Tex. App. -  Tyler 2000).  Court erred in refusing to let defense expert testify regarding "lack of future dangerousness and mitigating mental disorder" in a murder case.

 

Punishment Evidence, Extraneous Offenses, Instruction on Burden of Proof

Huizar v. State, 966 S.W.2d 702 (Tex.App. - San Antonio 1998). As the dissent states: "Until today, no court in this State had held that a trial court must instruct a jury on the burden of proof for extraneous offense evidence admitted during the punishment phase . . . regardless of whether such an instruction was requested; nor had any court held that the failure to give such an instruction constitutes automatic reversible error.". Accord: Ellison v. State, 51 S.W.3d 393 (Tex. App. -  Texarkana 2001).

 

Punishment Evidence, Extraneous Offenses, Instruction on Criminal Responsibility

Lindsay v. State, 102 S.W.3d 223 (Tex.App. - Houston[14th Dist] 2003). Court erred in not defining "criminal responsibility" when it provided an instruction to jury that they could only consider extraneous offenses if they believed Defendant committed offense or was criminally responsible for it.

 

Haley v. State, 113 S.W.3d 801 (Tex. App. -  Austin 2003). Jury instruction in punishment phase that jury could not consider extraneous offense unless they found that Defendant "participated" in alleged offense was "incomplete, misleading, and erroneous" in that it is not the proper definition regarding criminal responsibility for conduct of another.

 

Punishment Evidence, Extraneous Offenses, Whether Prosecuted

Mendiola v. State, 21 S.W.3d 282 (Tex.Crim.App. 2000). Remanded case to appellate court to determine whether trial court erred in disallowing evidence that extraneous offenses offered by prosecution had resulted in dismissed indictments.

 

Punishment Evidence, Extraneous Offenses, Evidence of Sentence

Sunbury v. State, 33 S.W.3d 436 (Tex. App. -  Houston[1st Dist.] 2000). When State introduces evidence of extraneous offenses (where Defendant  had been convicted and sentence but judgment was not yet “final”), trial court erred in failing to allow jury to hear what the sentence was in those cases. Aff'd 10/22/02 (183-01)

 

Punishment Evidence, Extraneous Offenses, Victim Impact

Marsh v. State, 115 S.W.3d 709 (Tex. App. -  Austin 2003). Victim impact evidence relating to extraneous offense offered in punishment phase was inadmissible.  See also Haley v. State, 173 S.W.3d 510 (Tex.Crim.App. 2005).

 

Punishment Evidence, Enhancement Paragraphs, Instruction on Burden of Proof

Martinez v. State, 969 S.W.2d 139 (Tex.App. - Fort Worth 1998). "We hold that a defendant who pleads guilty to the charged offense, but pleads not true to enhancement allegations, and tries those enhancements to a jury is entitled to a Geesa instruction on reasonable doubt and the failure to give the instruction is reversible error".

 

Punishment Evidence, Group Association

Shelton v. State, 41 S.W.2d 208 (Tex. App. -  Austin 2001). Evidence of Defendant KKK membership (including an expert outlining all the past terrorist acts of the group) required new punishment hearing when evidence had nothing to do with underlying offense.

 

Punishment Evidence, Mitigation, Physical Appearance of Sex Assault Victim

141 S.W.3d 686 (Tex.App. -  Texarkana 2004). Evidence of physical appearance of well developed 11 year old girl was admissible in punishment phase of aggravated sexual assault case.

 

Punishment Evidence, Notice of Extraneous

Mitchell v. State, 948 S.W.2d 62 (Tex.App. - Fort Worth 1997).  Generally a "motion" directed to the trial court to order the State to disclose the extraneous offenses it intends to offer during the punishment phase can be waived if a ruling is not secured. However,  if the same "motion" includes a paragraph "requesting" the State to provide such notice and the motion is provided to the State, the State is then required to provide notice even if the trial court does not rule on the motion. (Cf. Valle v. State, 950 S.W.2d 413 (Tex.App. - Houston [1st Dist] 1997). Update: Overruled by Court of Criminal Appeals on 11/18/98, no. 1205-97.

 

Punishment Evidence, Opinions of Defendant's "Safety Net"

Bell v. State, 948 S.W.2d (Tex.App. - Beaumont 1997).In a pre-Grunsfeld case, extraneous offenses are admissible as rebuttal evidence in the punishment stage if the defendant offers evidence in an attempt to make himself probation "worthy". This doctrine would extend to allow the State to offer evidence of the less than flattering opinions about the criminal justice system held by those that would be within the defendant's "safety net" if he were granted probation. However, specific evidence that one of the "safety net" members heard an unidentified individual in the courtroom refer to the jury as "redneck" would be inadmissible since there is no evidence the unidentified person was within the “safety net”.

 

Punishment Evidence, Prior Judgements, Connecting to Defendant

Aleman v. State, 49 S.W.3d 92 (Tex. App. -  Beaumont 2001). Prior judgements must be connected to the Defendant, normally by fingerprint evidence. Not done here.

 

Punishment Evidence, Suitability for Probation, Recidivism

Peters v. State, 31 S.W.3d (Tex. App. -  Houston[1st Dist.] 2000). Big defense case. The 1993 revisions to 37.07 now allow evidence of probation suitability. For example, a defense expert that incest perpetrators have a recidivism rate of 2% is admissible.

 

Punishment Evidence, Video, Tributes

Salazar v. State, 90 S.W.3d 330 (Tex.Crim.App. 2002). Seventeen minute video played in punishment phase was error when it contained 140 photos and was accompanied by music from Celine Dion and Enya. See also 118 S.W.3d 880 (Tex. App. -  Corpus Christi 2003)(On remand, error was reversible).

 

Punishment, Mandatory Fine

Scott v. State, 988 S.W.2d 947 (Tex.App. - Houston [14th Dist.] 1999). Be aware there are still some aggravated drug cases that require a fine (the traditional language of "may" assess a fine is not present). In those situations, the failure of a fine to be imposed will require a remand for a new punishment hearing.

 

Punishment Hearing, Election, Due Process

Sterry v. State, 959 S.W.2d 249 (Tex.App. - Dallas 1997). Defendant is denied due process in exercising his statutory right to chose who assesses punishment when, after jury conviction, trial court improperly states range of punishment, Defendant chooses court for punishment, but prior to punishment hearing court announces that range of punishment was actually one level higher that previously announced.

 

Ivey v. State, 250 S.W.3d 121 (Tex.App. -  Austin 2007). Wow. Judge can place Defendant on probation even if he elected jury assess punishment and jury assesses incarceration punishment.

 

Reckless, Pleading

State v. Vasquez, 34 S.W.3d 332 (Tex. App. -  San Antonio 2000). When the states alleges a culpable mental state of “recklessly” it must allege the act or acts relied upon that constitute recklessness.

 

Reckless/Criminal Negligence Proof

Williams v. State, 235 S.W.3d 742 (Tex.Crim.App. 2007). Finally, a case that sets forth what “reckless” and “criminal negligence” means. Read it.

 

Montgomery v. State, 346 S.W.3d 747 (Tex.App - Houston[14th Dist.] 2011). Insufficient evidence in this negligent homicide case where Defendant was allegedly talking on cell phone.  Update: Reversed at 369 S.W.3d 189 (Tex.Crim.App.2012)

 

Recusal

DeLeon v. Aguilar, 127 S.W.3d 1 (Tex.Crim.App. 2004).  When a recusal motion is timely filed, Rule 18A leave a trial judge with no discretion - he must either recuse himself or refer the motion for another judge to decide.

 

Resisting Arrest, Sufficiency of the Evidence

Vaughn v. State, 983 S.W.2d 860 (Tex.App. - Houston [14th Dist.] 1998). Officer's testimony that Defendant resisted him during pat down search was resisting detention, not resisting arrest.

 

Sheehan v. State, 201 S.W.3d 820 (Tex.App. -  Waco 2006). The age old question of what acts constitute “using force” against the officer.

 

Restitution, Does Not Equal “Cost Of Repair”

Miller v. State, 343 S.W.3d 499 (Tex.App -  Waco 2011) Although cost of repair is a proper standard for determining level of offense for Criminal Mischief, the restitution statute uses loss of value as its standard.

 

Restitution, Who Can Receive And What For

Lemos v. State, 27 S.W.3d 42 (Tex. App. - San Antonio 2000). Good case discussing restitution. Here, for example, restitution for damage caused to deceased victim’s business due to food perishing was disallowed despite fact damage occurred because victim’s spouse was “too distraught” to tend to the store.

 

Retaliation, Insufficient Evidence

Riley v. State, 965 S.W.2d 1 (Tex.App. - Houston [1st Dist.] 1997). Proof that Defendant harmed a public servant who was lawfully discharging an official duty (i.e. restraining a prison inmate), without more, fails to establish the required retaliatory element.

 

"Rule, The"; Burden to Establish Exemption

White v. State, 958 S.W.2d 460 (Tex.App. - Waco 1997). "The Rule" under Texas Rules of Evidence 613 is mandatory upon request and any exemptions to its application must be based upon  a "showing" and not conclusory statements (i.e. "his presence is necessary"). Here State did not establish a basis for having Texas Ranger remain in courtroom. (Also, harm analysis was under new rule 44.2(b).

 

Sanity, Expert Examination, Failure to Provide Report

Giron v. State, 19 S.W.3d 572 (Tex. App. - Beaumont 2000). An expert which is appointed to render an opinion on the sanity of a Defendant must provide a written report within 30 days of the examination per art 46.03 § 3. Failure to do so will prohibit the State from calling that expert as a witness.

 

Scientific Evidence (Significant)

Hernandez v. State, 116 S.W.3d 26 (Tex.Crim.App. 2001). Court erred in allowing evidence of urinalysis results in an MTR/MTA hearing. Even though proponent need not "reinvent the wheel" by proving scientific reliability of evidence that has been held to be admissible in other proceedings, court must at least be provided some information that will allow it to rely upon previous rulings (i.e cite to Emerson case holding HGN evidence is reliable).

 

Search and Seizure, Arrest, “About to Escape”, art. 14.04

McGee v. State, 23 S.W.3d 156 (Tex.App. - Houston [14th Dist.] 2000). Even though probable cause to arrest Defendant on drug charge, the State failed to prove the additional element that he was “about to escape” as required by art. 14.04

 

Moore v. State, 55 S.W.3d 652 (Tex. App. -  San Antonio 2001). Odd case. Officer who stopped car for traffic violation and then was approached by third persons alleging that passenger had stolen a $20 ham could not be arrested since officer did not observe the theft (the ham had been discarded) and no felony offense involved.

 

Search and Seizure, Arrest, “Suspicious Place” art. 14.03

Buchanan v. State, 175 S.W.3d 868 (Tex.App. -  Texarkana 2005). One of the rare cases that find a place was not “suspicious” for a warrant arrest statutory exception. Update: Rev’d at 207 S.W.3d 772 (Tex.Crim.App. 2007)(lack of error preservation.)

 

Search and Seizure, Arrest Warrant, Justify Home Entry?

Green v. State, 78 S.W.3d 604 (Tex. App. -  Fort Worth 2002). A misdemeanor arrest warrant will justify entry into a defendant's own home so long as there is a reasonable suspicion that the dwelling is the Defendant's and there is reason to believe the Defendant is present.

 

Search and Seizure, Authority, Bedroom of Another

Corea v. State, 52 S.W.3d 311 (Tex.App. - Houston[1st Dist] 2001). Roommate cannot consent to search of bedroom that is not his when there is proof “no one else lives in  that bedroom but the Defendant”.

 

Search and Seizure, Border Patrol

979 S.W.2d 47 (Tex.App. -  Corpus Christi 1998). Not enough here to justify vehicle stop by border patrol.

 

Search and Seizure, Collateral Estoppel

Guajardo v. State, 24 S.W.3d 423 (Tex. App. - Corpus Christi 2000). When motion to revoke is filed in district court for new offenses of possession of a controlled substance and possession of marijuana, and when a county court had previously ruled that marijuana was unlawfully seized, and cocaine had been found as a result of that same search, the doctrine of collateral estoppel prevented the allegation of possession of a controlled substance to be used as a basis of the MTR.  Update: Court of Criminal Appeals reverses because the district court in this case was not provided with "any documents from the county court case as evidence". See 109 S.W.3d 456 (Tex.Crim.App. 2003).

 

Search and Seizure, Community Caretaking Function

Wright v. State, 18 S.W.3d 245 (Tex. App. - Austin 2000). Defendant leaning out of a back window of a vehicle and throwing up did not warrant community caretaking stop.

 

Andrews v. State, 79 S.W.3d 649 (Tex. App. -  Waco 2002) Another case of passenger throwing up not being enough to justify the stop of an automobile.

 

Corbin v. State, 85 S.W.3d 272, (Tex.Crim.App. 2002) Driving onto shoulder for 20 feet and traveling slower than the speed limit did not justify stop under community caretaking function.

 

Salinas v. State, 224 S.W.3d 752 (Tex.App. -  San Antonio 2007). Proceeding into a T intersection, coming to a stop five feet from the curb, and then turning right did not give rise to stop under community caretaking function.

 

Gibson v. State, 253 S.W.3d 709 (Tex.App. -  Amarillo 2007) Mom called about daughter being late returning home and cops stop Defendant close to house in the process of taking her home (facts are unique.).

 

White v. State, __ S.W.3d ___ (Tex.App. -  Fort Worth 2008).  Driving around a block (kinda) is not sufficient to stop.

 

Travis v. State, 322 S.W.3d 747 (Tex.App -  Texarkana 2010). A call two hours later from Defendant’s brother that Defendant had been assaulted by Defendant, was intoxicated, and driving particular truck. Officer stopped Defendant on way to check out man passed out in similar truck. Court rules community caretaking did not justify stop (with no discussion about reasonable suspicion.)

 

Hernandez v. State, 376 S.W.3d 863 (Tex.App-Fort Worth 2012). Stopped in parking lot late at night after cop saw him bump head on steering wheel.

 

Search and Seizure, Consent, Apparent Authority

Hubert v. State, 286 S.W.3d 484 (Tex.App. -  Corpus Christi 2009) Housemate did not have authority to grant consent to third party’s bedroom. Update: Reversed at 312 S.W.3d 554 (Tex.Crim.App. 2010)

 

Limon v. State, 314 S.W.3d 694 (Tex.App -  Corpus Christi 2010) Officer failed to demonstrate cousin had actual authority to consent to search of home.

 

Search and Seizure, Consent, Extent of Consent

Stokvis v. State, 147 S.W.3d 669 (Tex.App. -  Amarillo 2004). Driver’s consent to search could not extend to passenger’s purse.

 

Valtierra v. State, 293 S.W.3d 697 (Tex.App. -  San Antonio 2009).  Allowing officer into apartment is not necessarily permission for officer to go down hallway and conduct search. Edit: Reversed by CCA.

 

Search and Seizure, Consent to Search, Voluntary

$217,590.00 v. State, 970 S.W.2d 660 (Tex.App. - Corpus Christi 1998). Response of "I guess so" to question to search was not clear and convincing evidence of consent.

 

Reasor v. State, 988 S.W.2d 877 (Tex.App. -  1999). No clear and convincing evidence of consent to search when Defendant was under arrest, weapons were drawn, and object of the search (home) had already been illegally searched.

 

Carmouche v. State, 10 S.W.3d 323 (Tex.Crim.App. 2000). Court reaffirms the “clear and convincing standard” for consent and finds that the Defendant did not consent to the search. (This decision may have more practical importance than legal in that the general pro-police Court found that a video tape of the encounter “show a different sequence of events” than the officer’s testimony).

 

Reyes-Perez v. State, 45 S.W.3d 312 (Tex. App. -  Corpus Christi). No clear and convincing evidence of consent to search when Defendant spoke broken English and officer communicated with hand gestures.

 

Montanez v. State, 143 S.W.3d 344 (Tex.App. -  Waco 2004). Another case where Hispanic Defendant spoke very little English.  Update: Reversed by Court of Criminal Appeals due to standard of review error. See 195 S.W.3d 101 (Tex.Crim.App. 2006.)

 

Harrison v. State, 144 S.W.3d 82 (Tex.App. -  Fort Worth 2004). DWI Defendant that provided breath test (that was negative) and then agreed to provide blood test but only submitted to urine test after numerous attempts to find vein (which was painful) did not provide that urine sample voluntarily.

 

Cisneros v. State, 165 S.W.3d 853 (Tex.App. -  Texarkana 2005). Officer telling driver that he didn’t need warrant to search auto invalidated consent.

 

Grimaldo v. State, 223 S.W.3d 429 (Tex.App. -  Amarillo 2006). Consent obtained after illegal entry into home was not valid.

 

Meekins v. State, 303 S.W.3d 25 (Tex.App. -  Amarillo 2009) Defendant wouldn’t answer directly to multiple requests for consent to search car and finally answered “yes” to question of “Do you mind if I look.” Update: Reversed at 340 S.W.3d 454 (Tex.Crim.App. 2011)

 

State v. Mosely, 348 S.W.3d 435 (Tex.App -  Austin 2011). No voluntary consent in DWI blood case when officer incorrectly told Defendant he could mandatorily take his blood by statute (accident caused death but no probable cause to arrest)

 

Search and Seizure, Consent, Subsequent Search

Sanchez v. State, 982 S.W.2d 929 (Tex.App. -  Austin 1998). A burglary suspect's consent to search his home does not extend to a subsequent search when the first search occurs, stolen property is found therein, the defendant voluntarily travels to police station and is then arrested, and the subsequent search occurs about one hour later.

 

Search and Seizure, Curtilage, Back Door

Pool v. State, 157 S.W.3d 36 (Tex.App. -  Waco 2004). Officer’s cannot go knock on a back door without first knocking on front door without and answer.

 

Search and Seizure, Exigent Circumstances

State v. Bagby, 119 S.W.3d 446 (Tex. App. -  Tyler 2003). Exigent circumstances can come to an end. In this case, a deputy went into a shed with Defendant on a limited consent to search. Second deputy goes in to check on deputy and court justifies entry on "exigent circumstances" basis.  First deputy then ends his consent to search and leaves shed with second deputy remaining. Second deputy must leave at that point since exigent circumstances were over.

 

Search and Seizure, Expectation of Privacy

Parker v. State, 182 S.W.3d 923 (Tex.Crim.App. 2006). Defendant had reasonable expectation of privacy in car he was driving even though car had been rented by his girlfriend.

 

Search and Seizure, Illegal Act by Private Citizen, Art. 38.23

McCuller v. State, 999 S.W.2d 801 (Tex.App. -  Tyler 1999). Great case. Art. 38.23 applies to conduct of private citizens as well as government agents. Thus, photographs of an interior of a home are subject to being suppressed if they were taken by a citizen who committed the offense of criminal trespass to gain access to the interior of the home.

 

Jenschke v. State, 147 S.W.3d 398 (Tex.Crim.App. 2004). Court says that there is no illegal act by private person if the purpose of the illegal act was to gather evidence for the police (without police knowledge). However, in this case, the intent was to resolve a dispute “within the family” thus the evidence should be excluded.

 

Search and Seizure, Jurisdiction for Arrests

Warning: Art. 14.01 et seq of CCP was amended by 2003 legislature.  See specifically art. 14.03(g)(2) Generally, a municipal police officer now has county wide jurisdiction. See e.g. Thomas v. State, 336 S.W.3d 703 (Tex.App - Houston[1st Dist.] 2010)

 

State v. Kurtz, 111 S.W.3d 315 (Tex. App. -  Dallas 2003). Plano police officers jurisdiction was city wide only.  Update: Kurtz affirmed at 166 S.W.2d 255 (Tex.Crim.App. 2005) And take a look at State v. Purdy, 244 S.W.3d 591 (Tex.App. -  Dallas 2008) on the issue of stopping for reasonable suspicion outside jurisdiction (you can.).

 

Armendairz v. State, 63 S.W.3d 572 (Tex. App. -  El Paso 2001). City police officer may not "arrest" Defendant outside his jurisdiction for a traffic violation. (Case actually involved a detention vs. an arrest).

 

Search and Seizure, Jurisdiction for Temporary Detentions

See warning in previous section regarding legislative changes.

 

Yeager v. State, 23 S.W.3d 566 (Tex. App. - Waco 2000). An officer of a Class B municipality does not have the authority to made a DWI temporary detention outside of his city’s limits. “Hot pursuit” doctrine is not applicable when officers followed DWI suspect outside city limits to observe driving Update: Rev'd on issue of "hot pursuit". 104 S.W.3d 103 (Tex.Crim.App. 2003).

 

State v. Kurtz, 111 S.W.3d 315 (Tex. App. -  Dallas 2003). Officer did not have authority to conduct Terry detention outside his jurisdiction for traffic violations. Accord: Gerron v. State, 57 S.W.3d 568 (Tex. App. -  Waco 2001).  (But officer does have authority to stop for DWI when based upon probable cause. See Brother v. State, 166 S.W.3d 255 (Tex.Crim.App. 2005)

 

Search and Seizure, Probable Cause, DWI

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.

 

Search and Seizure, Pretext Stop

State v. Dixon, 206 S.W.3d 587 (Tex.Crim.App. 2006). Amazingly court said that trial court did not rule it was a pretext stop but instead implicitly ruled that he did not believe the officers that a traffic violation had occurred.

 

Search and Seizure, Probable Cause, Considering Refusal to Consent

Smith v. State, 243 S.W.3d 722 (Tex.App. -  Texarkana 2007) Can’t do it.

 

Search and Seizure, Probable Cause, Drug Area

Villalobos v. State, 999 S.W.2d 132 (Tex.App. -  El Paso 1999). Pretty blatant case: Defendant's arrest (actually a Terry stop that turned into a defacto arrest) after stopping in a drug area, getting out an talking to another individual with no evidence of a physical transaction between them, was invalid. Drugs found in care thereafter were suppressed.

 

Search and Seizure, Probable Cause, Mistake Of Law By Officer

Robinson v. State, 377 S.W.3d 712 (Tex.Crim.App.2012) Take a look at this case if an officer stops someone solely on the basis of his mistaken perception of the law.

 

 

Search and Seizure, Probable Cause, Odor, Residence

State v. Steelman, 16 S.W.3d 483 (Tex. App. - Eastland 2000) aff'd at 93 S.W.3d 102 (Tex.Crim.App. 2002).  Interesting case. An anonymous tip coupled with the smell of marijuana being apparent when an occupant of the home opens the door to officers is insufficient probable cause to establish that an offense was being committed in the presence of officers. Thus, entry into home was illegal  Accord: Radford v. State, 56 S.W.3d 346 (Tex. App. -  Eastland 2001) aff'd 10/22/02 (1022-00).  But see Barocio v. State, 158 S.W.3d 498 (Tex.Crim.App. 2005) and Estrada v. State, 154 S.W.3d 604 (Tex.Crim.App. 2004) which limit Steelman somewhat. Further chipping away at Parker v. State, 206 S.W.3d 593 (Tex.Crim.App. 2006).

 

Burton v. State, 339 S.W.3d 349 (Tex.App -  Texarkana 2011) Anonymous tip plus odor of ammonia (and a little more) established probable cause but there were no exigent circumstances to justify entry into residence.

 

Search and Seizure, Probable Cause, Obstructing Highway

Paulea v. State, 278 S.W.3d 861 (Tex.App. - Houston[14th Dist]  2009). Kind of a scant record, but these fact did not justify arrest for Obstructing a Highway.

 

Search and Seizure, Probable Cause, Passenger

Leday v. State, 3 S.W.3d 667 (Tex.App. -  Beaumont 1999). Driver found to be in possession of drugs on his person did not justify subsequent arrest of passenger even though passenger "expressed concern" about driver's arrest and kept eyes "glued" to officer-driver interaction.

 

Search and Seizure, Probable Cause, Theft of Services, Rent Car

State v. Larue, 6 S.W.3d 671 (Tex. App. - Corpus Christi). Just because an officer knows a rent car is “overdue” by nine days is not probable cause to seize it. Section 31.04 of the Penal Code has some notice requirements (i.e. certified mail) that must be satisfied before an offense occurs.

 

Search and Seizure, Protective Sweep

Torrez v. State, 34 S.W.3d 10 (Tex. App. -  Houston[14th Dist.] 2000). Police responding to “drinking” and “shooting in air” outside of trailer had no right to enter that trailer. The opinion described the search as “a raid reminiscent of vigilantes” in light of fact a wake was going on and a mariachi band was playing.

 

Davis v. State, 74 S.W.3d 90 (Tex. App. -  Waco 2002). When Defendant was arrested outside of his trailer, discovery of meth lab in the kitchen could not be justified on the basis of a  "protective sweep".

 

Search and Seizure, Punishment Phase, Illegal Search, Review Standard

Hernandez v. State, 80 S.W.3d 63 (Tex. App. -  Amarillo 2002). It is the "constitutional error" standard that the court of appeals uses when extraneous evidence, obtained in violation of fourth amendment, is admitted in punishment phase

 

Search and Seizure, Reasonableness

Hereford v. State, 339 S.W.3d 111 (Tex.Crim.App. 2011) Even the Court of Criminal Appeals thinks its unreasonable to blast a guy over and over again with a taser to get dope out of his mouth.

 

Search and Seizure, Roadblocks

State v. Luxon, 230 S.W.3d 440 (Tex.App. -  Eastland 2007). Two police officers creating, on their own and without approval, a driver’s license checkpoint is illegal.  But see Lujan v. State, online site, (Tex.Crim.App. January 12, 2011)(authorizing dl and insurance checkpoints if that is its sole purpose.)

 

Search and Seizure, Strip Search

McGee v. State, 23 S.W.3d 156 (Tex.App. - Houston [14th Dist.] 2000). Even assuming arrest was lawful, the observation of defendant’s anus (where drugs were found) during a strip search was not a “reasonable” search even in light of the general right to search a Defendant incident to an arrest.

 

Search and Seizure, Suppression Hearing, Defendant’s Limited Testimony

Crosson v. State, 36 S.W.3d 642 (Tex. App. -  Houston [1st Dist.] 2000}. Defendant is entitled to take stand on motion to suppress and testifying regarding circumstances of search without subjecting himself to the question of “Did you know [the evidence] was in the truck”.

 

Search and Seizure, Suppression Hearing, Hearsay

Ford v. State, 268 S.W.3d 620 (Tex.App. -  Texarkana 2008) Even though the Court of Criminal Appeals has held the Rules of Evidence do not apply to suppression hearings, Texas Code of Criminal Procedure art.  28.01 requires affidavits. Thus, an unsworn police report offered into evidence is inadmissible.  Update: Rev’d by Court of Criminal Appeals here.

 

Search and Seizure, Suppression Hearing, Uncontroverted State's Evidence

State v. Ross, 999 S.W.2d 468 (Tex.App. - Houston [14th Dist.] 1999) aff’d 32 S.W.3d 853 (Tex.Crim.App. 2000). This case stands for the proposition that a trial court has the right to disbelieve the uncontroverted evidence of the State and, on appeal, the appellate court will not conduct a de novo review.  Accord: State v. Maldonado, 176 S.W.3d 419 (Tex.App. - Houston[1st Dist.] 2004). Accord: State v. Cullen, 167 S.W.3d 428 (Tex.App. -  San Antonio 2005). See also State v. Rudd, 255 S.W.3d 293 (Tex.App. -  Waco 2008)(can disbelieve trooper administered HGN correctly when not videotaped.)  But see State v. Elias, 339 S.W.3d 667 (Tex.Crim.App. 2011)(If trial court makes limited findings of fact and conclusions of law, the Ross presumption has exceptions.)

 

State v. Boone, 45 S.W.3d 743 (Tex. App. -  Houston[1st Dist.] 2001). Court will assume, under the “almost total deference” standard, that trial court disbelieved officer’s testimony. Accord: State v. Nash, 55 S.W.3d 110 (Tex. App. -  Austin 2001). See also State v. Hunter, 102 S.W.3d 306 (Tex. App. -  Fort Worth 2003)(court doesn't go quite so far as to say officer was not believable by trial court but the result is same). See also State v. Ramirez, 246 S.W.3d 287 (Tex.App. -  Amarillo 2008)(finding of fact did not include part of officer’s testimony so it will be presumed it was not believed.)

 

Search and Seizure, Suppression Hearing, Videotape

Tucker v. State, 369 S.W.3d 179 (Tex.Crim.App.2012) If a videotape is admitted, it’s contents are part of the “totality of the circumstances” that must considered when determining if consent was voluntarily given.

 

Search and Seizure, Terry, Arrest Instead of Detention

State v. Crisp, 74 S.W.3d 474 (Tex. App. -  Waco 2002). When officer's stopped car leaving suspected drug house and immediately cuffed the driver and occupants, an arrest occurred and not a temporary detention.


Search and Seizure, Terry, Duration

 

 

Starting place is St. George v. State, 237 S.W.3d 720 (Tex.Crim.App. 2007)  and a great case to get a jury instruction is Hamal v. State, 352 S.W.3d 835 (Tex.App -  Fort Worth 2011).

 

Great defense case from Fifth Circuit: U.S. v. Shabazz, 993 F.2d 431 (5th Cir. 1993). Update: The greatest Fifth Circuit case ever on length of a Terry detention is U.S. v. Jenson, 04-CR-190-ALL (August 23, 2006).

 

Wolf v. State, 137 S.W.3d 797 (Tex.App. – Waco 2004). Great case discussing that “nervousness” is not enough to detain beyond a normal traffic stop to wait for the drug dog (three minute delay). Great case.

 

State v. Kothe, 123 S.W.3d 444 (Tex. App. -  San Antonio 2003). Defendant stopped based upon tip of erratic driving. Officer determined that Defendant not intoxicated and then ran DL for outstanding warrants. Held: Once it was determined that Defendant was not intoxicated, the purpose for the stop had ended and officer had no authority to continue to detain Defendant.  Update: Reversed by Court of Criminal Appeals. 152 S.W.3d 54

 

Herrera v. State, 80 S.W.3d 283 (Tex. App. -  Texarkana 2002). ). Detention was unlawful once traffic stop was concluded. Pretext traffic stop and there was a delay of five to seven minutes after the business of the traffic stop was concluded  for the sole purpose of obtaining an interpreter for a consent. No reasonable suspicion was created during the traffic stop. See also Sieffert v. State, 290 S.W.3d 478 (Tex.App. -  Amarillo 2009)(driving slow through high crime district and nervousness did not create reasonable suspicion to detain past traffic stop); State v. Wilson, 295 S.W.3d 759 (Tex.App. -  Eastland 2009)(nervousness and refusal to consent not enough to prolong detention.)But see: James v. State, 102 S.W.3d 162 (Tex. App. -  Fort Worth 2003)(OK to ask for consent to search even after traffic stop has concluded) and Robledo v. State, 175 S.W.3d 508 (Tex.App. -  Amarillo 2005)(same) and Edmond v. State, 116 S.W.3d 110 (Tex.App. - Houston[14th Dist] 2002)(continued detention OK in order to ask two questions about drugs) and Levi v. State, 147 S.W.3d 541 (Tex.App. -  Waco 2004)(Ok to ask for consent after end of traffic stop so long as officer does not convey message that honoring request is required), Very similar case in favor of State: Saldivar v. State, 209 S.W.3d 275 (Tex.App. -  Fort Worth 2006)(not per se  unreasonable to ask questions or request consent to search after a detention is complete as long as message is not conveyed that compliance is required.); Hartman v. State, 144 S.W.3d 568 (Tex.App. -  Austin 2004)(waiting five to 15 minutes for cop with video to show up for DWI investigation was not unreasonable). Haas v. State, 172 S.W.3d 42 (Tex.App. -  Waco 2005)(general pro-state case); See Belcher v. State, 244 S.W.3d 531 (Tex.App. -  Fort Worth 2007)(Case affirms conviction but  discusses the length of permissible delay when one officer waits for another officer, video, or drug dog etc. ) Significant: United States v. Macias, No. 10-50614 (9/27/11): Illegal continued detention after a legitimate traffic stop because officers began lengthy questioning that had nothing to do with original purpose of the stop and was not based on reasonable suspicion.

 

State v. Daly, 35 S.W.3d 237 (Tex. App. -  Austin 2000). Detention was unlawful once basis for traffic stop was concluded. (Note: Court puts a great emphasis on the fact that the Defendant was not told he was free to leave, a requirement that the US Supreme Court has concluded does not exist)

 

Autry v. State, 21 S.W.3d 590 (Tex.App. - Houston [1st Dist.] 2000). Even though officers had a reasonable suspicion to detain the Defendant, once a pat down revealed nothing, a continued detention for 10 minutes while drug dog was summoned was excessive.

 

Veal v. State, 28 S.W.3d 832 (Tex. App. - Beaumont 2000). Valid traffic stop turned into illegal detention for drug investigation when officer’s only articulable facts were that the defendant had a tie on at 12:30 a.m. and was slow to respond to simple questions.

 

St. George v. State, 197 S.W.3d 806 (Tex.App. -  Fort Worth 2006). Continued questioning of passenger after traffic stop resolved was unlawful. (And great case discussing what police and cannot do as to passengers without reasonable suspicion).

 

Search and Seizure, Terry, Pat  Down, No Fear for Officer's Safety

Note: Please read O'Hara v. State, 27 S.W.3d 548 (Tex.Crim.App.2000) for a review of the law about this topic.

 

Sikes v. State, 981 S.W.2d 490 (Tex.App. -  Austin 1998). Passenger in vehicle was illegally "patted down" when stop/detention was in the middle of the afternoon and officer testified that the reason for the pat down was (1) it was a routine practice and (2) "there is always a fear for the officer's safety".

 

Ohara v. State, 989 S.W.2d 132 (Tex.App. -  San Antonio 1999). Officer's testimony that he "routinely" pats down an individual before they are placed in a patrol car is not sufficient to justify a pat down search.  Note: Rev’d 27 S.W.3d 548 (Tex.Crim.App. 2000).

 

Guevara v. State, 6 S.W.3d 759 (Tex. App. - Houston[1st Dist.] 1999). Traffic stop in the middle of the day (based upon a drug tip), in a public parking lot and with a cooperative Defendant did not justify pat down.

 

Horton v. State, 16 S.W.3d 848 (Tex. App. - Austin 2000). Even though Terry allows for a “frisk” of an automobile, there still must be a reasonable basis for believing the officer is in fear of his safety.

 

Tucker v. State, 135 S.W.3d 920 (Tex.App. -  Amarillo 2004). Officer did not objectively fear for his safety merely because he stopped motorcyclist in middle of night who wore a fanny pack with a “large bulge”.

 

Canales v. State, 221 S.W.3d 194 (Tex.App. - Houston[1st Dist.]  2006). No basis to search car under Terry exception.

 

Search and Seizure, Terry, Pat Down, Plain Feel Doctrine

Sturchio v. State, 136 S.W.3d 21 (Tex.App. -  San Antonio 2002).  There was no evidence in the record to justify that officer recognized crack pipe as a crack pipe during a pat down.  See Baldwin v. State. PD-1630-07 (March 11, 2009)(setting forth that a Terry search can only be a “pat down” for weapons and officer cannot reach into pocket for general search.)

 

Search and Seizure, Terry, Pat Down, Scope

State v. Williams, 312 S.W.3d 276 (Tex.App - Houston[14th Dist.] 2010). Male officer uncomfortable at prospect of patting down female could not ask her to pull her bra away from her chest as an alternative.

 

 

Search and Seizure, Terry, Stop, Anonymous Tip/Citizen Tip

Davis v. State, 989 S.W.2d 859 (Tex.App. -  Austin 1999). Phone call accurately describing defendant's vehicle with the additional claim that it was being driven "recklessly" did not provide sufficient suspicion to stop vehicle when police saw no unusual driving of the vehicle. Accord: Stewart v. State, 22 S.W.3d 646 (Tex. App. - Austin 2000); But see  State v. Stolte, 991 S.W.2d 336 (Tex.App. -  Fort Worth, 1999) & Brother v. State, 85 S.W.3d 377 (Tex. App. -  Fort Worth 2002). Cf: State v. Fudge, 42 S.W.3d 226 (Tex. App. -  Austin 2001)(Face to face tip by unknown cab driver).  Another bad defense case: Pipkin v. State, 114 S.W.3d 649 (Tex. App. -  Fort Worth 2003)(Cellular phone user id'd herself and describe vehicle wherein she observed driver smoking crack). Another conservative Fort Worth opinion at Gansky v. State, 180 S.W.3d 240 (Tex.App. -  Fort Worth 2005).

 

Garcia v. State, 3 S.W.3d 227 (Tex. App. - Houston[14th Dist.] 1999). Anonymous tip was not sufficiently corroborated in this marijuana in home case and subsequent consent was tainted by the illegal detention. (Affirmed on appeal on different issue). Accord: Armendariz v. State, 63 S.W.3d 572 (Tex. App. -  El Paso 2001).

 

Hall v. State, 74 S.W.3d 521 (Tex. App. -  Amarillo 2002). Anonymous tip of DWI driver coupled with no poor driving observed by law enforcement did not justify stop of automobile.

 

Johnson v. State, 146 S.W.3d 719 (Tex.App. -  Texarkana 2004). Anonymous tip did not justify detention.

 

Swaffar v State, 258 S.W.3d 254 (Tex.App. -  Fort Worth 2008) Anonymous tip of couple fighting in parking lot with man possibly intoxicated coupled with officer observation of no poor driving was not sufficient to justify stop.

 

Martinez v. State, 348 S.W.3d 919 (Tex.Crim.App. 2011). Anonymous tip that a blue Ford pickup had stopped at specific intersection and put two bicycles into the bed of the truck was insufficient for reasonable suspicion.

 

Search and Seizure, Terry, Stop, Detention vs. Consenual Encounter

State v. Garcia-Cantu, 253 S.W.3d 236 (Tex.Crim.App. 2008) Definitive case. (See also State v. Castleberry, 332 S.W.3d 460 (Tex.Crim.App. 2011 and State v. Woodard, 341 S.W.3d 404 (Tex.Crim.App. 2011)(an actual stop on the street held not to be a stop but court relied heavily on presumption of proper police conduct without evidence to contrary.)

 

Crain v. State, 315 S.W.3d 43 (Tex.Crim.App. 2010) Officer sitting in car, calling for individual to “come here” along with shining spotlight on Defendant was a seizure once the Defendant yielded to that show of authority.  Cf. State v. Priddy, 321 S.W.3d 82 (Tex.App -  Fort Worth 2010)(hitting stopped car with spotlight and indicating Defendant needed to roll down window was only casual encounter.)

 

Parks v. State, 330 S.W.3d 675 (Tex.App -  San Antonio 2010) Shining spotlight on group, drove over to them, and “issued his request/command that they walk over to patrol car.”

 

Search and Seizure, Terry, Stop, Confidential Informant

Smith v. State, 58 S.W.3d 784 (Tex.App. - Houston[14th Dist] 2001). Where there is no background about the CI’s track record, a tip from him that the Defendant is driving down the road with drugs is insufficient basis for the stop.

 

Search and Seizure, Terry, Stop, Handcuffs

Gordan v. State, 4 S.W.3d 32 (Tex.App. -  El Paso 1999). While handcuffing a Defendant does not automatically transform a temporary detention into an arrest, it did so here when officer restrained the Defendant as a matter of "policy".

 

Ramirez v. State, 105 S.W.3d 730 (Tex. App. -  Austin 20003). Another case were handcuffing helped court find that the seizure was more than a mere detention.

 

Search and Seizure, Terry, Stop, Flight

State v. Perez, 56 S.W.3d 796 (Tex. App. -  Eastland 2001). Officer responding to theft allegation did not have right to detain Defendant when he was seen near the scene of the crime and even fled when he saw an officer drive by. Case turned on fact that his clothing did not match the initial description of the suspect. (Mere flight was not enough to give rise to a reasonable suspicion).

 

Search and Seizure, Terry, Stop, No “Reasonable Suspicion” Crime Afoot

Munera v. State, 965 S.W.2d 523 (Tex.App. - Houston [14th Dist.] 1997). This case provides a good discussion regarding the detention of a train station patron but is probably dated in that it utilizes the "as consistent with innocent activity" standard which has been abandoned by the Court of Criminal Appeals.

 

Cook v. State, 1 S.W.3d 718 (Tex.App. -  El Paso 1999). Hand movements indicative of a drug transaction in a high drug transaction area coupled with Defendant walking away from approaching officer did not give rise to a reasonable suspicion under Terry.

 

Garcia v. State, 43 S.W.3d 527 (Tex.Crim.App. 2001). Child looking back several times in a moving vehicle does not give rise to a reasonable suspicion that child was not wearing seat belt.

 

Davis v. State, 61 S.W.3d 94 (Tex. App. -  2001) "Defendant's actions in walking to and from a group of people gathered in a yard, at midnight, in a high crime area, while appearing nervous, did not provide reasonable suspicion to justify" stop.

 

McQuarters v. State, 58 S.W.3d 250 (Tex. App. -  Fort Worth 2001). Great case holding that detention was unreasonable when vehicle occupants were detained to wait for a drug dog after a routine traffic stop. Defendant’s nervousness and conflicting statements didn’t save the police.

 

Klare v. State, 76 S.W.3d 68 (Tex.App. - Houston[14th Dist] 2002). Pretty clear cut case: Nothing abut this vehicle movements from a parked location to a different location justified the stop.

 

Woods v. State, 115 S.W.3d 209 (Tex. App. -  Corpus Christi 2003). Sitting on bench in high crime area and turning head with a brown cigar behind his ear did not warrant Terry detention. Update: Rev’d on other grounds at 153 S.W.3d 413 (Tex.Crim.App. 2005).

 

Cisneros v. State, 165 S.W.3d 853 (Tex.App. -  Texarkana 2005) Great case negating nervousness, arrest records, and lack of ID on passenger as basis for probable cause.

 

 

Young v. State, 133 S.W.3d 839 (Tex.App. -  El Paso 2004). Officer stopping car based upon radio instruction of other officer not sufficient under Terry when only information was car stayed at residence a short period of time then left.

 

Newbrough v. State, 225 S.W.3d 863 (Tex.App. -  El Paso 2007). Car turning onto a private country road did not give rise to reasonable suspicion that underage drinking in a field was about to occur.

 

State v. Guzman, 240 S.W.3d 362 (Tex.App. -  Austin 2007). A case which acknowledges that the “exhibiting acceleration” statute has been dramatically changed.

 

State v Griffey, 241 S.W.3d 700 (Tex.App. -  Austin 2007).  Detention based upon report of falling asleep in drive-through lane at fast food joint, but being awake by the time the cops got there, was tossed in this case.

 

Foster v. State, 297 S.W.3d 386 (Tex.App. -  Austin 2009) DWI case. No reasonable suspicion when pull in behind cop very closely and rev your engine and “make two forward lurching motions.”  Update: Reversed at 326 S.W.3d 609 (Tex.Crim.App. 2010)

 

Derichsweiler v. State, 301 S.W.3d 803 (Tex.App. -  Fort Worth 2009). No reasonable suspicion when Defendant pulled up and stared at people in fast food line for 15 seconds or so and then appeared to do same thing at neighboring parking lot.  Update (wow): Reversed by Court of Criminal Appeals, 348 S.W.3d 906 (Tex.Crim.App. 2011).

 

Gonzalez-Gilando v. State, 306 S.W.3d 893 (Tex.App. -  Amarillo 2010). Looking away from officer and almost slowing to a stop at flashing yellow light does not equate reasonable suspicion.

 

Contraras v. State, 309 S.W.3d 168 (Tex.App. -  Amarillo 2010). Defendant and passenger looking away from officer as he passed (among with other silly things) was not reasonable suspicion.

 

State v. Kerwick, 353 S.W.3d 911 (Tex.App -  Fort Worth 2011).  Not sure how much this helps because facts so unique. Police responsed to several people fighting at a bar. Cops make contact with someone they “believed” had called who pointed across the street and said “there they are.”

 

Search and Seizure, Terry, Stop, Vague Facts, Conclusory

Ford v. State, 158 S.W.3d 488 (Tex.Crim.App. 2005). Officer’s testimony that Defendant was “following too close” to another vehicle is not specific enough and thus conclusory..

 

Castro v. State, 202 S.W.3d 348 (Tex.App. -  Fort Worth 2006). Seems to say that “failing to signal” is conclusory like the Ford case, above. (Court notes that a person can signal with lights or with hands).  Update: Rev’d at 227 S.W.3d 737 (Tex.Crim.App. 2007)

 

Search and Seizure, Terry, Stop, Driving Too Slowly

Richardson v. State, 39 S.W.3d 634 (Tex. App. -  Amarillo 2000). Driving 45 in a 65 when no traffic was around was insufficient to justify traffic stop based upon “Impeding Traffic” statute found at Transportation Code § 545.363.

 

Search and Seizure, Terry, Stop, Police Broadcast Tip

State v. Jennings, 958 S.W.2d 930 (Tex.App. - Amarillo 1997). If the sole basis for a vehicle stop is a police broadcast and there is no evidence in the suppression hearing as to the source of the information that gave rise to the broadcast, the evidence does not justify a Terry stop.

 

Hayes v. State, 132 S.W.3d 147 (Tex.App. -  Austin 2004). Tip for other officer that Defendant “might have a warrant” out for him did not justify detention.

 

Search and Seizure, Terry, Stop, Not Signaling From Private Parking Lot

State v. Hallman, 157 S.W.3d 65 (Tex.App. -  Fort Worth 2004). It is not a violation of Transportation Code to fail to signal intention to turn when leaving a private parking lot.

 

Search ad Seizure,  Terry, Not Signaling While  Exiting Freeway

Trahan v. State, 16 S.W.3d 146 (Tex. App. - Beaumont 2000). Traffic Code does not require the use of a turn signal when exiting a freeway, thus, there was no basis for the traffic stop.

 

 

Search and Seizure, Terry, Stop, Smell of Alcohol

Domingo v. State, 82 S.W.3d 617 (Tex. App. -  Amarillo 2002). The smell of alcohol, without more, does not justify a temporary detention to investigate for public intoxication.

 

Search and Seizure, Terry, Stop, Window Tint

State v. Exiga, 71 S.W.3d 429 (Tex. App. -  Corpus Christi 2002). For vehicles manufactured before 1988, and "dark window tinting" regulation does not apply.

 

Search and Seizure, Terry, Seizure of an Object

Note: This Author believes the whole concept of a “reasonable suspicion” to seize and object is questionable at best.

 

Staley v. State, 952 S.W.2d 590 (Tex.App. - Beaumont 1997).  During a traffic stop, a nervous individual who tries to hide a pill bottle does not in of itself give rise to a “reasonable suspicion” to “seize” the pill bottle. (Note: The issue did not involve opening a pill bottle during a Terry stop, but instead involves removing or seizure of the bottle from the defendant’s person).

 

King v. State, 35 S.W.3d 740 (Tex. App. -  Houston[1st Dist.] 2000). Officer had a “reasonable suspicion that” the container contained contraband when passenger through film cannister back into vehicle.

 

Search and Seizure, Vehicles

Cerda v. State, 951 S.W.2d 119 (Tex.App. - Corpus Christi 1997). If police obtained consent to search vehicle but it is moved to a different location and the driver would not be free to leave (assumed here!), a closed container cannot be opened without a warrant since exigent circumstances do not exist.

 

Wiede v. State, 157 S.W.3d 87 (Tex.App. -  Austin 2005).  There was no basis to search vehicle after it rear ended another vehicle when an arrest was not imminent. (Community caretaking function and probable cause did not exist).

 

 

Search and Seizure, Vehicles, Search Incident to An Arrest

State v. Kelly, 963 S.W.2d 866 (Tex.App. - San Antonio 1998). Defendant who was stopped for speeding but entered a home before being placed under arrest was not a “recent occupant” of the vehicle; therefore, police could not search the vehicle as an incident to his arrest. (Affirmance of trial court’s ruling adverse to State).

 

Search Warrant, Execution, Three Days

State v. Rico, 241 S.W.3d 648 (Tex.App. -  Amarillo 2007). A case explaining how the three days are to be calculated.

 

Search Warrant, Franks Hearing, False Statements

Cates v. State, 120 S.W.3d 352 (Tex.Crim.App. 2003). Defendant offered proof that search warrant contained a false statement, thus, Defendant was entitled to a Franks hearing.

 

Harris v. State, 184 S.W.3d 801 (Tex.App. -  Fort Worth 2006). Rare case where court of appeals finds statements in affidavit were false or made in reckless disregard for the truth.

 

Search Warrant, General Statement

Robuck v. State, 40 S.W.3d 650 (Tex. App. -  San Antonio 2001). Stands for the proposition that “broad generalized” statements cannot support probable cause but it would have been nice if they had quoted more of the affidavit.

 

Search Warrant, Informant

State v. Wester, 109 S.W.3d 824 (Tex. App. -  Dallas 2003). A search warrant was not based on probable cause when the affidavit was based upon the statement of a person who had been arrested for possession of marijuana that he had obtained the marijuana from the Defendant at the Defendant's home.

 

Search Warrant, Insufficient Description

State v. Chavarria, 992 S.W.2d 22 (Tex.App. - Houston [1st Dist.] 1997). Search of one unit of duplex was invalid when warrant provided officers with nothing to distinguish between the two units and when door entered faced west when the warrant said it would face south.

 

Long v. State, 132 S.W.3d 443 (Tex.Crim.App. 2004). Warrant authorizing search of “silver passenger train car” on a lot did not authorize search of a red caboose that was also on the property. The “place and premises” language didn’t save the warrant.

 

Search Warrant, No Probable Cause

Serrano v. State, 123 S.W.3d 53 (Tex. App. -  Austin 2003). No pc in this case which involved an informant and powdery residue found in garbage that field tested positive.  (Good defense case). A follow up case on the same issue is State v. Davila, 169 S.W.3d 735 (Tex.App. -  Austin 2005).

 

Taylor v. State, 54 S.W.3d 21 (Tex. App. -  Amarillo 2001). Affidavit failed to provide pc that Defendant had child porn at his home. In essence, affidavit said that officer had received one child porn picture from someone from an AOL user who had a screen name that “came back” to the Defendant.

 

Cardona v. State, 134 S.W.3d 854 (Tex.App. -  Amarillo 2004). No probable cause to believe that items listed in warrant were associated with manufacture of methamphetamine because affidavit failed to mention it.

 

State v. Gonzales, 146 S.W.3d 760 (Tex.App. -  Eastland 2004). Post office delivery of known marijuana did not authorize search warrant when the package was not actually delivered to Defendant but to 12 year old child when the Defendant was not at home.

 

Davis v. State, 144 S.W.3d 192 (Tex.App. -  Fort Worth 2004). No probable cause to believe drugs in home (as well as some false info contained in affidavit).

 

Pool v. State, 157 S.W.3d 36 (Tex.App. -  Waco 2004). No probable cause when CI had no basis of reliability and only corroboration was vague reference that officer’s smelled “chemicals”. But see Davis v. State, 202 S.W.3d 149 (Tex.Crim.App. 2006) for any meth lab search warrant.

 

Elardo v. State, 163 S.W.3d 760 (Tex.App. -  Texarkana 2005) Search warrant for child porn based upon tip from “a reliable source” does not establish probable cause.

 

State v. Hill, 299 S.W.3d 240 (Tex.App. -  Texarkana 2009) Drug house search warrant affidavit was too generic by referencing confidential informants with no background information.

 

Kennedy v. State, 338 S.W.3d 84 (Tex.App -  Austin 2011). No probable cause to search home after an aggravated assault of a police officer. (Basically the old “lets go search his house” after a crime unrelated to his house.)

 

Bonds v. State, 355 S.W.3d 902 (Tex.App -  Fort Worth 2011). No probable cause but this case turns more on a wrong description. House searched was one next door to the one listed at specific address in affidavit.

 

Search Warrant, Remoteness

Rowell v. State, 14 S.W.3d 806 (Tex.App. - Houston [1st Dist.] 2000). Affidavit asserting facts that Defendant pawned contraband six months ago does not provide probable cause to believe the contraband is still, or ever was,  in the Defendant’s home.

 

State v. McLain, 310 S.W.3d 180 (Tex.App -  Amarillo 2010). Affidavit failed to State when CI saw dope in Defendant’s home. It just stated that the affiant had spoke to CI within the last 72 hours.

 

State v. Jordan, 315 S.W.3d 660 (Tex.App. - Austin 2010) Leaving out date and time of DWI stop invalidated affidavit for search warrant for blood.  Edit: Reversed at 342 S.W.3d 565 (Tex.Crim.App. 2011)(warrant issued at 3:54 and date of offense was that same day so offense occurred within four hours of issuance). But when the affidavit refers to an offense the day before (perhaps before midnight) but does not specifically, list the time, it is insufficient. Crider v. State, 352 S.W.3d 704 (Tex.Crim.App. 2011)

 

Search Warrant, Vehicles, Outside of Curtilage

Matthews v. State, 165 S.W.3d 104 (Tex.App. -  Fort Worth 2005). Vehicle parked on street with one tire in driveway could not be searched pursuant to warrant that authorized search of home and “all vehicles . . . within the curtilage” of the home.

 

Selective Prosecution, Equal Protection

Lovill v. State, 287 S.W.3d 65 (Tex.App. -  Corpus Christi 2008) Treating Defendant differently because she is pregnant in a probation revocation proceeding violated equal protection clause.

 

Self Defense, Instruction

Holloman v. State, 948 S.W.2d 349 (Tex.App. - Amarillo 1997) Instruction on self defense should have been provided based upon evidence that the Defendant testified he "tussled" and "fought with" with the victim though "never . . . all out". Court also questions whether the Defendant must admit to conduct that constitutes the exact "manner and means" of the charging instrument before self-defense instruction should be provided.

 

Barrera v. State, 951 S.W.2d 153 (Tex.App. - Corpus Christi 1997). If evidence raises issue of self defense, charge in the abstract of self defense is inadequate. Application paragraph is required.

 

Johnson v. State, 157 S.W.3d 48 (Tex.App. -  Waco 2004). Self defense instruction should have been given in this murder case.

 

Vanbrackle v. State, 179 S.W.3d 708 (Tex.App. -  Austin 2005). Self defense issue was raised and instruction should have been given. The fact that Defendant also raised inconsistent “involuntary act” defense does not effect the right to the instruction.

 

Guilbeau v. State, 193 S.W.3d 156 (Tex.App. - Houston[1st Dist.]  2006). Evidence raised self defense issue and instruction should have been given. (murder case).

 

Rue v. State, 288 S.W.3d 107 (Tex.App. - Houston[1st Dist.]  2009) Evidence raise use of deadly force to prevent aggravated kidnapping.

 

Self-Defense, Instruction, Apparent Danger

Torres v. State, 7 S.W.3d 712 (Tex.App. - Houston [14th Dist.] 1999). Evidence supported a charge on apparent danger in addition to instruction on actual danger. Additionally, a Defendant does not had to admit the offense before instructions may be given.

 

Self Defense, Instruction, When Charged With Property Offense

Boget v. State, 40 S.W.3d 624 (Tex. App. -  San Antonio 2001). Self defense is not limited to crimes against persons. In this criminal mischief case involving damage to a car, Defendant had right to self defense instruction.  Affirmed at 74 S.W.3d 23 (Tex.Crim.App. 2002)

 

Self Defense, Instruction, Multiple Assailants

Dickey v. State, 979 S.W.2d 825 (Tex.App. - Houston [14th Dist.] 1998). Where some evidence revealed Defendant was under attack from two individuals, he was entitled to a "Multiple Assailant Instruction" and this error was not remedied by the standard self defense instruction being included in the charge.

 

Kemph v. State, 12 S.W.3d 530 (Tex. App. - San Antonio 1999). Defendant was entitled to “multiple self defense instruction” when he was charge with resisting arrest at the hands of several officers. It was not sufficient that the charge contained a self defense instruction as to the single officer he was charged with arresting.

 

Self Defense, Evidence of Victim’s Violent Nature

Espinoza v. State, 951 S.W.2d 100 (Tex.App. - Corpus Christi 1997). Defendant, in murder case, should have been allowed to offer evidence that he was aware victim, on prior occasion, had claimed to have shot a third person. Defendant was claiming self defense and immediately before the alleged offense the victim made a gesture consistent with going for a gun.

 

Torres v. State 71 S.W.3d 758 (Tex.Crim.App. 2002). Defendant in murder prosecutrion was entitled to introduce evidence that victim had previously made threats of violence against Defendant's friend's aunt and her children.  (This opinion again goes up again at 117 S.W.3d 891 (Tex.Crim.App. 2003).)

 

Self-Defense, Force v. Deadly Force

Ferrel v. State, 16 S.W.3d 861 (Tex.App. - Houston [14th Dist.] 2000). Defendant was entitled to issue of self defense. The mere fact that the victim died does not necessarily mean the Defendant used “Deadly Force” under §9.32. (Defendant struck victim with bottle which caused him to fall and suffer a second, and fatal, blow to the head).

 

Self-Representation, Admonishments

Manley v. State, 23 S.W.3d 172 (Tex. App. - Waco 2000). Failure to provide Defendant admonishments regarding self representation after jury was selected was too late.

 

Self Representation, Right to Assert

Birdwell v. State, 10 S.W.3d 74 (Tex. App. - Houston[14th Dist.] 1999). Trial court erred in denying Defendant’s request to represent himself on day of trial.

 

Sentencing, Due Process, Judge’s Formula

Hernandez v. State, 268 S.W.3d 176 (Tex.App. -  Corpus Christi 2008) Trial judge announcing before trial that his policy is to double a previous sentence and then actually does it after jury verdict of guilt, violates due process.

 

Sentencing, Increase of Punishment on Remand, Vindictiveness

Davila v.State, 961 S.W.2d 610 (Tex.App. - San Antonio 1997). Record did not affirmatively set forth reasons for increase in defendant's punishment on remand from 45 to 75 years, thus, not rebutting presumption of vindication.

 

Sentencing, Punishment Range

Barton v. State, 962 S.W.2d 132 (Tex.App. - Beaumont 1997). In certain aggravated possession cases (i.e possession greater than 400 grams), a fine is mandatory since the punishment range is not the traditional first degree felony. A plea agreement, therefore, that does not include a fine requires a reversal of the case in its entirety.

 

Harris v. State, 153 S.W.3d 394 (Tex.Crim.App. 2005). Odd case. Judge doesn’t specifically say on day of sentencing that he found enhancement to be true and then sentences Defendant to ten years (below the minimum had the enhancement been found true). Later the judge tries to impose a 25 year sentence and finds enhancement paragraph true. Held: Too late. Original ten year sentence stands.

 

Dunn v. State, 176 S.W.3d 880 (Tex.App. -  Fort Worth 2005). Crazy case. Defendant is found guilty of criminally negligent homicide with a deadly weapon making it a state jail felony punishable as a third degree. Judge sentences Defendant to two years in the “institution division” but immediately retracts it thinking it is a state jail felony range and says “state jail division”. A week later he calls the parties back, and sentences the Defendant to eight years in the institutional division: Held. The original two year ID sentence was valid and the judge is stuck with it.

 

Sentencing, Stacking

Allen v. State, 951 S.W.2d 925 (Tex.App. - San Antonio 1997). After a jury’s verdict in the punishment phase, the judge has no authority to “stack” the defendant’s sentence on top of  “previous sentences” when the only proof  of the “previous sentences” were the judgments entered into evidence during the punishment phase. Other than the name on the judgments matching that of the defendant, there was no proof that the defendant was associated with the prior convictions. (Obviously, had there been an objection, the judgments would not have been admissible).

 

Parfait v. State, 120 S.W.3d 348 (Tex.Crim.App. 2003). § 3.03(b)(2)(A) which allows stacking of certain sexually related offenses arising out of the same criminal episode does not apply when one of the stacked sentences is a based upon a conviction of attempt.

 

Jackson v. State, 157 S.W.3d 514 (Tex.App. -  Texarkana 2005). Two separate indictments for delivery of a controlled substance that were tried in same trial had to give rise to concurrent sentences because both offenses occurred during same criminal episode.

 

Ewing v. State, 157 S.W.3d 863 (Tex.App. -  Fort Worth 2005). Defendant sentenced to 20 years on count one but probated sentences on count two and three. Judge ordered the probated sentences to run consecutively. He can’t. They must run concurrently but court can order they begin after prison term is over.

 

Green v. State, 242 S.W.3d 215 (Tex.App. -  Beaumont 2007). Run of the mill case that two dope convictions prosecuted at the same time could not be stacked upon one another  Sentencing after revocation.

 

State v. Crook, 248 S.W.3d 172 (Tex.App. -  2008) Fines, like sentences, must run concurrently when cases prosecuted in same criminal action.

 

Sentencing, Stacking, Oral Pronouncement Controls Over Written Judgment

Ex Parte Madding, 70 S.W.3d 131 (Tex.Crim.App. 2002) Once a judge pronounces that two sentences will run "concurrently" and the Defendant leaves the courtroom, a subsequent written judgement cannot order the sentences to be stacked.

 

Serious Bodily Injury, Insufficient Evidence

Fleming v. State, 987 S.W.2d 912 (Tex.App. -  Beaumont 1999). Great case discussing what constitutes "serious bodily injury" and holds that evidence was insufficient even though victim had knee surgery to repair torn cartilage and was still in pain "since [his] surgery".

 

Bueno v. State, 996 S.W.2d 406 (Tex.App. -  Beaumont 1999). Evidence of a two inch scar, without more, is insufficient to establish serious bodily injury.

 

Severance, Multiple Counts

Graham v. State, 19 S.W.3d 853 (Tex.Crim.App. 2000). Defendant was entitled to severance when indictment alleged capital murder of two different victims in different “paragraphs” of one count. The allegations were not different means of committing one capital murder but instead two separate capital murders.

 

Scott v. State, 173 S.W.3d 856 (Tex.App. -  Texarkana 2005). Charges or possession of child pornography and promoting sexual performance should have been severed. Update: Error was harmless. 235 S.W.3d 255 (Tex.Crim.App. 2007).

 

Wheat v. State, 160 S.W.3d 631 (Tex.App. -  Waco 2005). Three count indictment involving two separate victims. Defendant wanted to plead guilty to two counts with one victim, not guilty to one count with the other victim, and wanted the one count severed. Court erred by denying him the severance. Update: High court says harm analysis should have been performed. 178 S.W.3d 833 (Tex.Crim.App. 2005). Update: Harm found. 196 S.W.3d 350 (Tex.App. -  Waco 2006).

 

Severance, Multiple Defendants

Aguilar v. State, 26 S.W.3d 901 (Tex.Crim.App. 901). When an event occurs during trial that could not be anticipated and would allow for a severance under art. 36.09, a motion to sever can be timely if made at that moment despite trial having begun.

 

Severance, Two Indictments

Llamas v. State, 991 S.W.2d 64 (Tex.App. -  Amarillo 1998) aff’d 12 S.W.3d 469 (Tex.Crim.App. 1999). Defendant could not be prosecuted in one criminal proceeding on two separate indictments when he specifically objected to the consolidation.

 

Sex Offender, Failure to Register, Insufficient Evidence

Green v. State, 350 S.W.3d 617 (Tex.App - Houston[14th Dist.] 2011)  Case turned on lack of proof of  intent to change residence.

 

Sexual Assault, Defense, Medical Care

Cornet v. State, 359 S.W.3d 217 (Tex.Crim.App. 2012) Medical care defense not limited to health care professionals.

 

Sexual Assault, Penetration, Insufficient Evidence

Woodall v. State, 376 S.W.3d 134 (Tex.App-Texarkana 2012).  Good case on when penetration occurs of the female sexual organ.

 

Shock Probation, Reverting Back to Deferred

Deifik v. State, 58 S.W.3d 794 (Tex. App. -  Fort Worth 2001). Weird case. Once a court imposes a TDC sentence and then pulls the Defendant out of the pen for the purpose of putting him on straight probation (i.e. shock probation), the court does not have the authority to simply vacate the original sentence and place the Defendant on deferred adjudication.

 

Simulating Legal Process, Insufficient Evidence

Saldana v. State, 109 S.W.3d 4 (Tex. App. -  El Paso 2002). If you ever have a simulating legal process case, here's a case discussing what constitutes an offense.

 

Speedy Trial, Constitutional Right

Kelly v. State, 122 S.W.3d  227 (Tex. App. -  Corpus Christi 2003). A 17 month delay in PCS < 1 gram case was too long. (Update: Rev’d at 163 S.W.3d 722 (Tex.Crim.App. 2005)

 

State v. Guerrero, 110 S.W.3d 155 (Tex. App. -  San Antonio 2003). This one's a little odd with state reindicting and filing motions for continuances. Length of time was around five years with Defendant constantly asserting Speedy Trial right.

 

State v. Rangel, 980 S.W.2d 840 (Tex.App. -  San Antonio 1998). Trial court properly granted speedy trial motion in the DWI case where there was a  20 month delay.

 

Thompson v. State, 983 S.W.2d 780 (Tex.App. -  1998). Surprise: Twelve year delay violated Defendant's speedy trial rights.

 

State v. Smith, 66 S.W.3d 483 (Tex. App. -  Tyler 2001). Five year delay in this DWI case.

 

Zamorano v. State, 84 S.W.3d 643 (Tex.Crim.App. 2002). Almost four year delay in DWI case.

 

Stock v. State, 214 S.W.3d 761 (Tex.App. -  Austin 2007)35 month delay in felony DWI.

 

State v. Manley, 220 S.W.3d 116 (Tex.App. -  Waco 2007). Twenty nine month delay in misdemeanor assault case.

 

Puckett v. State, 279 S.W.3d 434 (Tex.App. -  Texarkana 2009) Five year delay in agg assault case.

 

Newman v. State, 303 S.W.3d 10 (Tex.App. - Houston[14th Dist]  2009). Eight year delay in Intoxication Assault case.

 

Speedy Trial, Art. 17.151, No Indictment

Ex Parte Venegas, 116 S.W.3d 160 (Tex. App. -  San Antonio 2003).State cannot announce "ready" if there is no indictment on file when meeting challenge based upon statute that requires reduction in bond or PR bond if State is not ready within 90 days. See also Ex Parte Craft, 301 S.W.3d 447 (Tex.App. -  Fort Worth 2009).

 

Ex Parte Carson, 215 S.W.3d 921 (Tex.App. -  Texarkana 2007). If State is not ready for trial within 90 days, a bond must be set at an amount the Defendant can make. Reducing it to $10,000 when he testified he only had $100 was not sufficient. Bond set at $1,000 by court of appeals.

 

Ex Parte Castellano, 321 S.W.3d 760 (Tex.App -  Fort Worth 2010). If Defendant is released under 17.151 on  a PR bond and the Defendant is later indicted and a capias is issued off the indictment (why??), then PR bond should apply to the indictment and Defendant is not required to post new bond.

 

Speedy Trial, Art. 32.01, Indictment by Next Term of Court

Ex Parte Torres, 966 S.W.2d 723 (Tex.App. - San Antonio 1998). Art. 32.01 (before amendement) was not unconstitutional.

 

Stalking, Enhanced

State v. Newsome, 64 S.W.3d 478 (Tex. App. -  El Paso 2001).  To elevate the normally Class A offense of stalking to a third degree because of a prior conviction, the prior conviction must not have been a probated sentence.

 

State Jail Felony, Credit for Prior County Jail Time

Ex Parte Harris, 946 S.W.2d 749 (Tex.Crim.App. 1997). A Defendant is entitled to county jail time credit if (1) the Defendant is indigent and (2) he receives a maximum state jail felony sentence.

 

McGregor v. State, 145 S.W.3d 820 (Tex.App. -  Dallas 2004). A Defendant who is indigent must receive credit for his county jail time if the jail time plus his state jail sentence exceed the maximum of two years. Example: Sentence of 665 days in State Jail where Defendant has already been incarcerated for 149 days. He will then be entitled to 84 days credit because 665 + 84 days = 2 years. Bottom line: an indigent Defendant can never spend more than 2 real years of incarceration on a state jail felony.

 

State Jail Felony, Enhancment as Habitual

State v. Webb, 12 S.W.3d 808 (Tex.Crim.App. 2000). A state jail felony that is enhanced to a second degree offense because of two successive felonies pursuant to Penal Code § 12.42(a)(2) cannot be enhanced any further.

 

State Jail Felony, Enhancement to Second Degree

Waits v. State, 56 S.W.3d 894 (Tex. App. -  Fort Worth 2001). Section 12.42(a)(2) which allows for a SJF to be enhanced to a second degree with proof of two previous and sequential “felonies” does not allow for those “felonies” to be State Jail felonies.

 

State Jail Felony, Enhancement to Third Degree

Tucker v. State, 61 S.W.3d 446 (Tex. App. -  Amarillo 2001). When the State alleges the Defendant's state jail felony offense should be enhanced to a third degree felony because of a prior conviction involving a deadly weapon, the State must prove it with a judgement that actually contains an affirmative finding. A judgement that simply reads "Aggravated Battery (Deadly Weapon)" is insufficient.

 

State Jail Felony, Prior Conviction

Jordan v. State, 979 S.W.2d 75 (Tex.App. -  Austin 1998). The pre 9/1/97 version of art. 42.12 § 15 which mandated probation for a State Jail Felony offense unless the Defendant had previously been convicted of a felony requied a "final" prior felony conviction.

 

Sudden Passion, Attempted Murder

Mims v. State, 3 S.W.3d 923 (Tex.Crim.App. 1999). The sudden passion mitigation defense is applicable in attempted murder cases.

 

Sudden Passion, Instruction Required

Trevino v. State, 60 S.W.3d 188 (Tex. App. -  Fort Worth 2001).  Defendant's reliance of self-defense and/or accident at guilt/not guilt phase does not automatically mean that he foregoes sudden passion instruction in punishment phase.

 

Sudden Passion, Charge

Newton v. State, 168 S.W.3d 255 (Tex.App. -  Austin 2005). Jury charge should require jurors to unanimously agree that sudden passion does not exist before it can move on to assessing punishment for murder.  Accord: London v. State, 325 S.W.3d 197 (Tex.App -  Dallas 2008).

 

Tampering With Evidence, Legal Insufficiency

Pannell v. State, 7 S.W.3d 222 (Tex.App. -  Dallas 1999). Evidence was insufficient to support conviction for tampering with evidence when (1) Defendant was in the process of being stopped for traffic violation, (2) he threw marijuana cigarette out window, and (3) officer was not aware of, nor investigating, a marijuana case at the time the cigarette was thrown away.

 

Hollingsworth v. State, 15 S.W.3d 586 (Tex. App. - Austin 2000). Evidence was legally insufficient to convict Defendant  of “concealing” cocaine in his mouth since the evidence showed that he normally carried it in his mouth, thus, there was no intent to “impair its availability”.

 

Lumpkin v. State, 129 S.W.3d 659 (Tex.App. - Houston[1st Dist.]  2004). This case is identical to Pannell (above) but the court holds that the evidence is insufficient because the State alleged that the investigation was “in progress”. They say, however, they disagree with Pannell because the allegation in that case was “pending”.

 

Rotenberry v. State, 245 S.W.3d 583 (Tex.App. -  Fort Worth 2007). Concealing information is not the same as concealing evidence.

 

Stewart v. State, 240 S.W.3d 872 (Tex.Crim.App. 2007). Weird case of cop taking marijuana from evidence room when he didn’t think there would be a prosecution.

 

Thornton v. State, 377 S.W.3d 814 (Tex.App-Amarillo 2012). Dropping a crack pipe on the ground is not “concealing” it.

 

Tampering With Governmental Record

State v. Vasilas, 153 S.W.3d 725 (Tex.App. -  Dallas 2005). A petition for expunction filed with a court is not a governmental record. Update Reversed at 187 S.W.3d 486 (Tex.Crim.App. 2006) and on remand at 198 S.W.3d 480 (Tex.App. -  Dallas 2006_.

 

Thompson v. State, 215 S.W.3d 557 (Tex.App. – Texarkana 2007). Noting distinction between altering a governmental document and making a governmental docket.

 

Tampering With VIN, Sufficiency of Evidence

Boudreaux v. State, 24 S.W.3d 503 (Tex. App. - Texarkana 2000). Case stands for the proposition of: if someone “alters” a VIN, then charge them under Penal Code § 31.11 and not Transportation Code § 501.151(a).

 

The Rule

Brumbelow v. State, 10 S.W.3d 685 (Tex. App. - Tyler 1994). Court abused discretion in striking testimony of one witness who had telephone conversations with another witness after the trial began. (More interesting, perhaps, is why a 1994 case does not make it into the Southwestern Reporter until S.W.3d).

 

Theft, Enhancement, Two or More Prior Theft Convictions

Brown v. State, 14 S.W.3d 832 (Tex. App. - Austin 2000). Once a misdemeanor theft offense is enhanced to the State Jail felony level for two prior thefts, the State cannot use a additional prior theft convictions to enhance the offense even further.

 

Bruns v. State, 22 S.W.3d 540 (Tex. App. - El Paso 2000). State may not use two prior forgery convictions to enhance a misdemeanor theft into a felony.

 

Theft, Indictment, Charging Theft "by deception"

Leal v. State, 975 S.W.2d 636 (Tex.App. - San Antonio 1998). Evidence was insufficient to prove theft when the indictment specifically alleged that the theft occurred by "deception". Had the indictment only alleged "without the effective consent of the owner", the result would probably have been different.  

 

Geick v. State, 321 S.W.3d 706 (Tex.App - Houston[14th Dist.] 2010)  And 12 years later, the above Leal case is still good law: State did not prove “by deception” that was required since it was set forth in indictment.  Aff’d at 349 S.W.3d 542 (Tex.Crim.App. 2011).

 

Theft, Insufficient Evidence

Simmons v. State, 84 S.W.3d 810 (Tex.App. - Houston[1st Dist] 2002). Defendant accused of stealing two checks. Since there was no proof that the drawer of the checks had sufficient funds in the bank to cover the checks if presented for payment, the evidence is insufficient.  Update: Reversed at 109 S.W.3d 469 (Tex.Crim.App. 2003)

 

Heimlich v. State, 988 S.W.2d 382 (Tex.App. - Houston [14th Dist.] 1999). In a nutshell: if the complainant receives a check from a third person made payable to the Defendant for which, by agreement, the Defendant is to pay those funds to the complainant, there is no theft even if the Defendant tricks the complainant into handing over the check so long as the Defendant deposits the check and does not spend the money that is deposited.

 

Jacobs v. State, 230 S.W.3d 225 (Tex.App. - Houston[14th Dist] 2006). Very good case if you have a contract dispute that the prosecutor tries to turn into a theft case.  See also Ehrhardt v. State, 334 S.W.3d 849 (Tex.App -  Texarkana 2011).  See also Bounds v. State, 355 S.W.3d 252 (Tex.App - Houston[1st Dist.] 2011).

 

Bokor v. State, 114 S.W.3d 558 (Tex. App. -  Fort Worth 2002). If you ever need a cite for a case for the proposition that some cases are best left to the civil courts instead of the criminal courts, here you go.

 

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.

 

Wirth v. State, 342 S.W.3d 161 (Tex.App -  Texarkana 2011). Bank draft case between businesses. Update: Rev’d by (Tex.Crim.App. 2010) on 3/12/12

 

Theft, Venue

Stewart v. State, 8 S.W.3d 832 (Tex. App. - Beaumont 2000). No offense occurred in County A when Defendant mails extortion letter to Defendant from County B to victim’s home in County A and victim mails money from County A to Defendant who receives it in County B.

 

Trial, Defendant Absent

Sumrell v. State, 326 S.W.3d 621 (Tex.App -  Dallas 2009) Defendant being absent from portion of voir dire violated Confrontation Clause.

 

Trial, Defendant in Jail Clothes or Shackles

Oliver v. State, 999 S.W.2d 596 (Tex.App. - Houston [14th Dist.] 1999). Reversible error to have Defendant appear at trial in jail garb.

 

Mendoza v. State, 1 S.W.3d 829 (Tex.App. -  Corpus Christi 1999). Requiring Defendant to appear in shackles at trial required reversal.

 

Scott v. State, 80 S.W.3d 306 (Tex. App. -  Fort Worth 2002). Defendant spent entire trial in clothes that could be interpreted as jail garb from Denton County.

 

Davis v. State, 195 S.W.3d 311 (Tex.App. - Houston[14th Dist]  2006). Defendant handcuffed. Case is important because although jury did not see handcuffs, it interfered with his ability to communicate with counsel in writing.

 

Wiseman v. State, 223 S.W.3d 45 (Tex.App. - Houston[1st Dist.]  2006). Shackled Defendant entitled to reversal. Trial court did not articulate sufficient reasons to justify shackling.

 

Trial, Due Process Right to Present a Defense, Hearsay Not a Problem

Alonzo v. State, 67 S.W.3d 346 (Tex. App. -  Waco 2001). Court erred in excluding hearsay videotape of "alternative perpetrator" defense because hearsay rule must yield sometimes to due process.

 

Trial, Judge’s Comments

Blue v. State, 41 S.W.3d 179 (Tex.Crim.App. 2000). Trial court erred in telling panel that a delay had been caused by the Defendant “considering a plea agreement”. (Surprise). Reversed on remand as well after harm analysis. 64 S.W.3d 672

 

Bustamante v. State, 109 S.W.3d 1 (Tex. App. -  El Paso 2002). Judge's comment that "as soon as I hear the defendant, we'll get into that" violated the Defendant's privilege against self incrimination.

 

Trial, Jurors Asking Questions

Gains v. State, 966 S.W.2d 838 (Tex.App. - Houston [14th Dist.] 1998). It is improper for the trial court to allow jurors to ask questions.

 

Trial, Public

Lilly v. State, 365 S.W.3d 321 (Tex.Crim.App.2012) Trial in chapel of a maximum security prison violated right to public trial.

 

Trial, Reopening Evidence

Reeves v. State, 113 S.W.3d 791 (Tex. App. -  Dallas 2003). Court erred in not allowing defense to reopen and offer relevant photographs of alleged crime scene.

 

Allman v. State, 164 S.W.3d 717 (Tex.App. -  Austin 2005). If closing arguments are completed, there is a statutory prohibition against reopening. Texas Code of Criminal Procedure art.  36.02. (This was an open plea case).

 

Trial, Witness, Invoking Fifth Amendment During Testiony

Stephens v. State, 59 S.W.3d 377 (Tex.App. - Houston[1st Dist] 2001). When witness testifies about criminal transaction he cannot thereafter claim the 5th for specific facts. Court, therefore, erred in allowing him to claim 5th and then strike testimony.

 

Torres v. State, 137 S.W.3d 191 (Tex.App. - Houston[1st Dist.]  2004). If a co-defendant invokes the Fifth while testifying, the Defendant is entitled to a jury instruction that no negative inference be made against him (the Defendant) per Tex.Rules.Evid. 513(d).

 

UCW, Defensive Instruction on “Traveling”

Birch v. State, 948 S.W.2d 880 (Tex.App. - San Antonio 1997). Defendant was entitled to the defense instruction on “traveling” even though he was going home from work at the time of the traffic stop which led to his arrest. Since the defendant had gone directly to work on the day of the offense after returning that morning from a multi-county journey, he did not necessarily abandon his traveling status by going to work instead of first stopping at his home.

 

UCW, Definition of “Club”

State v. Ortiz, 286 S.W.3d 514 (Tex.App. -  Corpus Christi 2009). A “tire buddy”, designed to check air pressure in tires, is not be definition a “club”.

 

Value, Fair Market v. Replacement

Moreno v. State, 961 S.W.2d 512 (Tex.App. - San Antonio 1997). In a criminal mischief case, State failed to establish value of tires damaged when only testimony was that of replacement cost of new tires.

 

Venue, Change Of

Gonzalez v. State, 225 S.W.3d 102 (Tex.App. -  El Paso 2005) Rare case where pretrial publicity warranted change of venue.

 

Venue, Perjury

Soliz v. State, 60 S.W.3d 162 (Tex.App. - Houston[14th Dist] 2001). In case it ever arises, venue for a perjury case is in the county wherein the false statement was made.

 

Victim Impact Statement, Changing Sentence Thereafter

Johnson v. State, 286 S.W.3d 346 (Tex.Crim.App. 2009) Trial court could not order jail time as condition of probation after Victim Impact Statement since sentence has already been imposed.

 

Victim Impact Statement, Time or Presentment

Gifford v. State, 980 S.W.2d 791 (Tex.App. - Houston [14th Dist.] 1998). Court erred in allowing unsworn, uncontroverted victim impact statement to be presented after plea of guilty but before sentencing in an open plea.

 

Videotaped Testimony, Child

Edwards v. State, 107 S.W.3d 107 (Tex. App. -  Texarkana 2003). In aggravated sexual assault case, court erred in allowing child to testify by videotape pursuant to statute without a finding that the child was "available".

 

Voir Dire, Beyond a Reasonable Doubt

Fuller v. State, 363 S.W.3d 583 (Tex.Crim.App. 2012) Error to not allow voir dire on difference between beyond a reasonable doubt, clear and convincing, and preponderance of the evidence.

 

Voir Dire, Commitment Questions

Standefer v. State, 2 S.W.3d 23 (Tex.App. -  El Paso). Improper to preclude defense counsel from asking, in a DWI case,  "whether or not [the panel] presumed an accused guilty if the accused refused to take a breath test".  Rev'd at 59 S.W.3d 177  (“the ‘commitment question’ case”.)

 

Lydia v. State, 109 S.W.3d 495 (Tex.Crim.App. 2003 Court of appeals failed to properly classify "commitment question" when jury panel was asked whether they would dismiss testimony of witness who had a  criminal history. Remanded for analysis of whether it was an improper commitment question. On remand: No, it was not improper. 117 S.W.3d 902.  See also Vann v. State, 216 S.W.3d 881 (Tex.App. -  Fort Worth 2007)(court erred in not allowing defense to ask a similar question.)

 

Tijerina v. State, 202 S.W.3d 299 (Tex.App. -  Fort Worth 2006). Court erred in not allowing defense counsel to ask “is there anybody here who feels that you would automatically disbelieve somebody simply because they are  a convicted felon.” It was a proper commitment question.

 

Also: The “convict on the testimony of one witness” question is valid. Lee v. State, 206 S.W.3d 620 (Tex.Crim.App. 2006).

 

Davis v. State, 349 S.W.3d 517 (Tex.Crim.App. 2011) “What factors do y’all think are important [in assessing punishment in this type of case]” is not a commitment question.

 

Voir Dire, Failure of Trial Court to Allow Questioning on Defensive Issue

Gonzales v. State, 972 S.W.2d 877 (Tex.App. - Texarkana 1998). Trial court erred in not allowing defense counsel to question jury panel on defense issue of "necessity" in this possession of a deadly weapon in penal institution. See on remand 2 S.W.3d 600.

 

Loredo v. State, 59 S.W.3d 289 (Tex. App. -  Corpus Christi 2001). Error to prevent defense from asking jury if they could follow parole law instruction.

 

Voir Dire, Hypotheticals, Committing Panel to Facts

Paustian v. State, 992 S.W.2d 625 (Tex.App. -  El Paso 1999). In a DWI case, it is inappropriate for State to ask panel whether it would be "reasonable" to "assume that the man standing beside the car . . . and admitted that he had been driving" was the driver.

 

McGee v. State, 35 S.W.3d 294 (Tex. App. -  Texarkana 2001). It is not committing a jury to particular fact to ask, if instructed by the court, (1) whether juror would not use prior convictions as evidence of guilt instead of evidence regarding credibility and (2) whether juror could disregard evidence of a confession if it was found to be involuntarily obtained.

 

Voir Dire, Individual Juror Questioning

Jones v. State, 223 S.W.3d 379 (Tex.Crim.App. 2007). Failure to allow individual juror questioning is Texas constitutional error

 

Voir Dire, Range of Punishment, Strike for Cause

Carroll v. State, 997 S.W.2d 399 (Tex.App. -  Beaumont 1999). Venireperson who could not consider minimum range of punishment should have been stricken for cause even if rehabilitated by State.

 

Loredo v. State, 107 S.W.3d 36 (Tex. App. -  Waco 2003). Juror who could not consider probation in an aggravated assault case should be been stricken for cause.

 

Voir Dire, Time Limit

Morris v. State, 1 S.W.3d 336 (Tex.App. -  Austin 1999). Trial court time limit of 45 minutes for voir dire was improper.

 

Rios v. State, 4 S.W.3d 400 (Tex.App. - Houston [1st Dist.] 1999). Forty-five minute limit on voir dire required reversal. Good discussion on the new harmless error rule as it applies to this type of error.

 

Wappler v. State, 183 S.W.3d 765 (Tex.App. - Houston[1st Dist.]  2005) Fifteen minute time limit of voir dire required reversal.

 

Voir Dire, Venire Person Comment, Mistrial

Young v. State, 73 S.W.3d 482 (Tex.App. - Houston[1st Dist] 2002). In sexual assault of child case,  venire who said she had worked with children for 30 years and she had never known a child to lie about sexual assault should have been cause for mistrial.

 

Voluntariness, Jury Instruction

Payne v. State, 33 S.W.3d 374 (Tex.App. - Houston [1st Dist.] 2000). Defendant was entitled in murder prosecution for instruction on voluntariness when there was some evidence that gun accidentally fired.

 

Sparks v. State, 68 S.W.3d 6 (Tex. App. -  Dallas 2001). Voluntariness issue was raised, and charge should have been given, when there was some evidence that Defendant tripped thereby causing injuries to a child.

 

Witness, Defense Counsel As

Flores v. State, 155 S.W.3d 144 (Tex.Crim.App. 2004). Error for defense counsel to be called as witness over objection regarding pretrial hearing that dealt with identification.

 

Witness, Prosecutor Testifying As

Powers v. State, 140 S.W.3d 851 (Tex.App. -  Fort Worth 2004). Officer which was involved in arrest of Defendant for DWI could not testify at the DWI trial when he had subsequently taken a position as assistant DA and the same DA’s office was the prosecuting authority.

 

Writs of Attachment, Denial of

Trinidad v. State,  949 S.W.2d 22 (Tex.App. - San Antonio 1997, no pet. hist.). Writ of attachment was improperly denied for subpoenaed witnesses once (1) defense counsel provided bill of exceptions as to what witnesses would have testified to, and (2) testimony was determined to be relevant and material. Accord: Sturgeon v. State, 106 S.W.3d 81 (Tex.Crim.App. 2003)