General Practice, Solo and Small Firm Section of the State Bar of Texas







            A. INDICTMENTS


State v. West, W.L. 746634; Lexis 1271 (Tex. App.—El Paso 2020)


Indictment – Tolling: The defendant was originally indicted in 2016 for possessing or attempting to possess Tramadol. He was re-indicted, and the substance was changed to oxycodone. A motion to quash that indictment was dismissed because it failed to include a tolling paragraph. He was indicted again, with the third indictment containing a tolling paragraph which pointed to the first indictment. State argued the two indictments were based on the same act and conduct, and the only change was the substance allegedly possessed. Trial court granted the motion to quash. Held: Reversed, holding that since the two indictments were based on the same conduct, the statute of limitations was tolled


            B. SEARCH & SEIZURE


Osequera-Viera, 592 S.W.3d 960 (Tex. App.—Houston [1st Dist.] 2019)


Expectation of Privacy- Unlocked phone:  A customer found a cell phone at the grocery store and turned it in to the store security officer. He opened the phone, attempting to identify the owner. It was not password protected. He first looked in contacts for an emergency contact, and then opened the photos to see if he could find a “selfie”. In doing so he saw what he believed was child pornography. Trial court denied motion to suppress, holding the phone was lost or abandoned property. Held: The court of appeals does not address that issue, but instead addresses the issue of standing and whether the defendant had a legitimate expectation of privacy in the contents of phone. Court holds that even if the defendant had a subjective expectation of privacy, that expectation was not objectively reasonable since he took no steps to secure it.



State v. Hodges, W.L. 239349; Lexis 250 (Tex. App.—Amarillo 2020)


Search Warrant - Lack of an Oath: The State obtained a search warrant for the defendant’s blood. Affidavit was signed by one officer at the direction of another officer, who then signed the jurat. Both testified that no one administered any type of oath to the first officer. Held: Trial court granted motion to suppress, which decision is affirmed by the Court of Appeals. A valid sworn affidavit does not exist where no one administers an oath to the person signing the affidavit.                                                   


            C. CONFESSIONS


No significant decisions

            D. VOIR DIRE


Spielbauer v. State, W.L. 371722; Lexis 591 (Tex. App.—Amarillo 2020)


Jury Selection - Opinion on Guilt:  Jurors were given questionnaires; one of the questions was whether they had heard about the case, and whether they had formed an opinion on guilt or innocence that would influence their verdict. Six jurors checked yes and all but one were excused. The defendant’s challenge to the remaining juror was denied and the error was properly preserved. Held: The court erred in denying the challenge since once an affirmative answer to that question is provided, there can be no further inquiry. The Court finds the defendant was harmed because counsel identified two jurors he would have exercised peremptory challenges on had he not been forced to use one on the juror. Note: It is worth reviewing this case to see how error is properly preserved in this situation. Many times the proper procedure is not followed which prevents relief even where a challenge for cause should have been granted.




            A. EVIDENCE


No significant decisions




No significant decisions


            C. INSTRUCTIONS


Wade v. State, W.L. 253345; Lexis 372 (Tex. App.—Austin 2020)


Instruction - Lesser Included Offense: The defendant was convicted of aggravated assault based on an incident where he bit off part of the victim’s earlobe. The defendant testified that if you saw the victim at the time of trial, you wouldn’t notice the difference between her two ears, which went to the issue of permanent disfigurement.  The court denied a request for an instruction on assault, since the only evidence supporting such an instruction was the defendant’s lay opinion on the seriousness of the injury. Held: That was enough evidence and an instruction should have been given.



Fraser v. State, 523 S.W.3d 320 (Tex. App.—Amarillo 2019)


Instruction – Reckless: The defendant ran a day care and was convicted of felony murder. The underlying felony was injury to a child, based on recklessly providing Benadryl to the child, which resulted in her death. The defendant argued the instruction on reckless was overly broad since it failed to distinguish between the result of conduct and the nature of the conduct, which allowed the jury to convict if they believed the defendant recklessly disregarded the circumstances that existed as opposed to disregarding the risk that death would result. The error was made worse by a failure to include an instruction that limited the instructions to the facts of the case in the application paragraph. Held: Even though no objection was made, the Court of Appeals holds the error was egregious and remands the case for a new trial.



Perez-Mancha v. State, 589 S.W.3d 909 (Tex. App.—Houston [14th Dist.] 2019)


Instructions - Continuous Sexual Abuse:  On appeal, the defendant claims that the jury charge was erroneous because it allowed the jury to convict him based on acts of sexual abuse committed prior to 9/1/07.  The State agreed that the charge was erroneous, but since no objection was made, the issue is whether the defendant suffered egregious harm. Held: The defendant suffered harm and it remands case for a new trial.



Curry v. State, W.L. 5587330; Lexis 1088 (Tex. Crim. App. 2019)


Mistake of Fact - Failure to Stop and Render Aid: The defendant was charged with failure to stop and render aid to a bicyclist. He claimed that he did not know at the time that he struck a person who required his assistance. He requested a mistake of fact instruction, arguing that there was conflicting evidence as to whether he knew he had struck a person. Held:  The intent required for an offense is whether the defendant made a reasonable mistake in thinking no one in the accident was injured or killed, or in thinking the accident was not reasonably likely to have injured or killed another person. The defendant testified that he thought he either collided with road debris or a beer bottle and that when he returned to the scene, he did not see the victim or his bicycle. Under those facts, a mistake of fact instruction should have been submitted.



Simpson v. State, 591 S.W.3d 571 (Tex. Crim. App. 2020)


Collateral Estoppel - Plea in Revocation Hearing: The defendant was arrested for aggravated assault of her roommate and also aggravated assault on a public servant. At the time she was on probation and plead true to both offenses in the revocation hearing. At trial, she requested a self-defense instruction. The Court objected, based on the prior pleas of true and her failure to raise self-defense in that proceeding. Court construed arguments as based on collateral estoppel. Held: There is no authority for the offensive use of collateral estoppel by the State, and it is not supported by the common law. The Defendant’s plea of true in a revocation hearing does not prevent her from pleading not guilty in the criminal case


            D. ARGUMENT


No significant decisions


            E. SENTENCING


Kuykendall v. State, 592 S.W.3d 967 (Tex. App.—Houston [1st Dist.] 2019)


Jeopardy - Failure to Appear: The defendant was convicted on two counts of failure to appear. The convictions were based on the failure to appear on two cases that were set on the same date. Held: The gravamen of the offense is the failure to appear in court, and therefore his conviction for more than one offense violates the double jeopardy prohibition. The Court grants relief even though the claim is raised for the first time on appeal.



Privette v. State, W.L. 6314226; Lexis 10213 (Tex. App.—Texarkana 2019)


Delaying Sentence: The defendant was charged in separate indictments with aggravated assault with a deadly weapon. He entered an open plea in both cases. The court found him guilty on one offense and sentenced him to two years in prison. The court reset consideration of the second case for 21 months out. After the defendant completed his prison sentence, he was brought back to court and placed on 10 years deferred adjudication. The defendant argued that was improper because both offenses arose out of the same criminal episode. Held:  The statutory prohibition only applies where the defendant is convicted of two offenses.  Since he was placed on deferred adjudication, there was no conviction in the second case and therefore there was no error.


            F. SUFFICIENCY


No significant decisions


            G. MISCELLANEOUS


Fernandez v. State, W.L. 831907; Lexis 1482 (Tex. App.—El Paso 2020)


Judicial Misconduct - Ex Parte Communications: The witness failed to appear after the jury was empaneled and the State sought a forfeiture by wrongdoing hearing. The State sought two continuances. The first one was granted, and during hearing on second, the State learned the witness had been located. The defendant raised concerns over the issuance of a writ of attachment that was obtained by the State in an ex parte contact with judge. Held: In not addressing the issue of misconduct, the Court held the defendant could not establish harm. There was no showing that counsel’s presence would have made a difference in the Court’s decision to issue the writ of attachment.



Stredic v. State, W.L. 6320220; Lexis 10257 (Tex. App.—Houston [14th Dist.]  2019)


Providing Testimony to Jury: During trial, the jury indicated they had a disagreement over the defendant’s testimony. The court indicated it would provide testimony by transcript, and subsequently provided excerpts of his testimony from both cross and redirect. The defendant objected to providing a written transcript instead of reading it back as required by statute. Held: The Court does not address the question of whether that was error, and instead holds the defendant was not harmed.




            A. APPEAL


State of Texas v.  $71,404, 583 S.W.3d 441 (Tex. App.—Austin 2019)


Forfeiture: Following a traffic stop, officers recovered approximately $71,000. The State filed forfeiture proceedings and also charged the defendant with money laundering. The defendant hired a lawyer to handle the criminal charge, but not the forfeiture. However, the lawyer filed an answer, and subsequently agreed to a judgement without discussing it with the defendant. The funds were subsequently disbursed and transferred to the DA’s forfeiture fund. The defendant hired a new lawyer, and within 30 days of the judgment being signed, filed a motion for new trial. Since it is an “in rem” proceeding, the State argued the court no longer had jurisdiction since the property had already been disbursed. The trial disagreed and granted the motion for new trial. Held: The Court agrees and affirms the trial court, holding the court retained jurisdiction for 30 days and therefore had the authority to grant a new trial.



Int’l Fidelity Ins. Co. (A-1 Bonding) v. State, 586 S.W.3d 9 (Tex. Crim. App. 2019)


Lost Transcript:  After the defendant failed to appear, a judgment nisi was filed. The bonding company filed a motion for new trial and a hearing was held. A court reporter was called in to transcribe the hearing, and according to both sides appeared to do so. The motion was denied, and notice of appeal was filed. No reporter’s record was filed and the court reporter subsequently stated she did not have a steno or audio file of the hearing. At an abatement hearing, the court reporter stated she had never recorded a hearing, and could not locate a record. The trial court entered findings that (1) the hearing was not stenographically or otherwise recorded, (2) the record was neither lost or destroyed, and (3) the fact that the record was not made was through no fault of the Appellant. The trial court held a motion for new trial was not required and the court of appeals agreed. Held: The rule does not contemplate a situation where a record is never created. Where a party cannot show the court reporter recorded the missing proceedings they are not entitled to a motion for new trial. Note: So, apparently the Court was willing to believe that the court reporter sat through the proceeding, and only pretended to record the proceeding?


            B. HABEAS CORPUS


Ex Parte Pointer, W.L. 6719996; Lexis 723 (Tex. Crim. App.  2019)


Habeas - Rejection of Trial Court Findings: The defendant was charged with murder. He plead guilty to the lesser offense of manslaughter and was sentenced to 25 years. The indictment contained a prior conviction out of Arkansas, to which the defendant plead true. It was later learned that the defendant was on probation in the Arkansas case at the time of this offense and that probation had not yet been revoked. The trial court granted relief, but the court of appeals rejected that conclusion. Held:  The Court found that trial counsel was not ineffective, the plea was not involuntary and the State had a good faith basis for believing the Arkansas conviction could be used for enhancement. Note: It appears that if counsel was not ineffective and the State was not at fault, no one has the obligation to determine whether a prior conviction is actually available for enhancement.




Ex Parte R.A.L. Jr., W.L. 557542; Lexis 987 (Tex. App.—San Antonio, 2020)


Expunction - Commission of Same Defense: The defendant was charged with DWI in 2017 and was acquitted following a trial. He filed a petition for expunction, which was granted. DPS appealed, claiming he was not entitled to an expunction because the prior DWI was part of the same criminal episode. Section 3.01, TPC defines same criminal episode as repeated commission of the same or similar offense.  There is no time limit. Held: The 2017 DWI conviction constitutes the commission of the same offense, and therefore he was not entitled to expunction.



Harrison v. State, W.L. 428750; Lexis 728 (Tex. App.—Houston [14th Dist.] 2020)


Ineffective Assistance: The defendant plead no contest to an injury to a child by omission and tampering with evidence. The court deferred a finding of guilt and reset the case for sentencing. Counsel approached the judge after the plea and asked whether he wanted them to provide him with authority establishing deferred was available in this case. In response, he effectively told them that deferred wasn’t an option where there was a dead baby. Counsel elected not to tell the defendant about this comment. After he was sentenced, the defendant learned about the comment and filed a Motion for New Trial. The trial judge admitted making the comment but claimed it was a “smart aleck comment” he shouldn’t have made and that he did consider the full range of punishment. Counsel explained they didn’t tell the defendant because they were concerned what the judge they would end up with. They admitted the possibility of deferred was a big deal to the defendant. Held: Counsel’s performance was deficient because it deprived the defendant of the right to ask to withdraw her plea, or request a jury trial. Also, the defendant was prejudiced by this failure. The question is not whether the outcome would have been different, but whether counsel’s action affected the defendant’s choice. The defendant demonstrated that had she known of the remarks, she would have asked to withdraw her plea and proceed to a jury trial.



Holland v. State, 591 S.W.3d 262 (Tex. App.—Dallas 2019)


Chapter 64 - Extraneous Offenses:  The defendant was charged in 3 separate cases with aggravated assault against 3 separate victims. He entered a plea agreement in which he plead guilty on one charge, and admitted guilt on the other two cases which were dismissed. He subsequently filed a motion for DNA testing in the two dismissed cases. Held:  Even though those offenses were considered in sentencing, the defendant is not entitled to testing since he was not convicted. Chapter 64 only grants jurisdiction to the “convicting court” and therefore, without a conviction, the Court has no jurisdiction.

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