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


FALL 2018






Ex Parte Jones, W. L. 1835925; LEXIS 3439 (Tex. App.—Tyler 2018)


Unconstitutional statute:  The defendant was charged with unlawful disclosure of intimate visual material. He filed a pre-trial application for habeas corpus, alleging the statute was unconstitutional. Held: The Court agrees that the statute is overly broad, because it doesn’t use the least restrictive means of preventing an invasion of a privacy. The Court suggests the statute could be narrowed to require that the defendant have knowledge of the circumstances giving rise to the privacy expectation.




Marcopoulos v. State, 548 S.W.3d 697 (Tex. App.—Houston [1st Dist.] 2018)

Warrantless Search: The defendant was stopped for failure to signal a lane change. He was placed under arrest, and the officers conducted an inventory search of his car, where they found cocaine. The Trial court denied the defendant’s motion to suppress, holding it was justified under the automobile exception. Held:  Reversed. The decision was sent back to determine whether the search was justified as an inventory search. The Court finds there was no testimony regarding the police procedure for conducting inventory searches, or whether that procedure was followed. The Officer who testified at the hearing was not the officer who conducted the search. As a result, the Court holds the State failed to carry its burden to establish the search was proper.


Collins v. Virginia, 138 S. Ct. 1663 (2018)


Search of Curtilage: The Officer investigating two traffic accidents discovered the motorcycle involved was stolen. He found photos on Facebook which showed the motorcycle parked in the driveway of the defendant’s house. He went to the house and observed what he believed was a motorcycle under a tarp. He walked up the driveway and lifted the tarp to photograph the license plate. The Court granted review to determine whether the automobile exception to the warrant requirement justified the search. Held: The Court holds it does not. That exception does not authorize entry into a home or its curtilage without a warrant.


No significant decisions




Quezada v. State, W.L. 1325248; LEXIS 1949 (Tex. App.—El Paso 2018)


Restricting Voir Dire: Prior to trial, the court scheduled an Art. 28.012 pre-trial hearing. The defendant filed a jury election, along with several other motions prior to the hearing. He did not file an application for probation and attempted to file that before jury selection commenced. The Court refused to allow counsel to file the application and instructed both sides that they could not voir dire on probation. The Court later allowed the defendant to file the application and ended up submitting an instruction on probation; the jury ended up sentencing the defendant to 10 years. Held: Since probation was submitted to the jury, the Court finds the trial court abused its discretion in not allowing counsel to question on that issue. Since there were no questions which would expose a jury’s inability to consider probation, the Court holds it cannot conclude that the court’s error did not contribute to the sentence.


No Significant decisions





West v. State, W. L. 3385146; LEXIS 5215 (Tex. App.—Houston [14th Dist.] 2018)


Extraneous Offense: The Defendant was charged with indecency with a child. He had a 1988 conviction for indecent behavior with two girls.  Held: The Court holds the trial court did not abuse its discretion in admitting the evidence, finding the State had a need for the evidence because the case came down to whether the jury believed the defendant or the complainant. While the court recognized the danger of deciding the case on an improper basis, the Court noted the allegations were no more serious than the charged offense, and the State did not go into the details of the charges.


Fowler v. State, 544 S.W.3d 844 (Tex. Crim. App. 2018)


Authentication: The Officer went to a store to view the store’s surveillance video. The store was unable to duplicate or copy the tape, so he recorded it on his body cam. Held: The tape was not properly authenticated, because no one testified about the equipment, and a how it operated. The court holds the trial court did not abuse its discretion in admitting the video. The determination that the video was authentic was within the “zone of reasonable disagreement.”


Niles v. State, W.L. 2947890; LEXIS 350 (Tex. Crim. App. 2018)


Charge Error: The defendant was convicted of a terroristic threat against a public servant. The jury charge did not ask if the threat was against a public servant, which would be necessary to raise the offense to a Class A misdemeanor, no objection was made, and on appeal, the defendant argued the sentence was illegal. The court agreed and reformed the judgement. Held: The court granted review, and held this was a charge error, which is subject to a harm analysis. The court of appeals erred in not addressing whether there was harm.


No significant decisions



Obrien v. State, 544 S.W.3d 375 (Tex. Crim. App. 2018)

Instruction - Engaging In Organized Criminal Activity: The defendant was charged with engaging in organized criminal activity. The predicate offenses were alleged to be theft and money laundering. The State argued that the jury did not have to be unanimous on whether the defendant committed theft or money laundering. No objection was made, but on appeal, the defendant argued that the jury instruction authorized a non-unanimous verdict. The court of appeals held the predicate offenses were manner of means of committing the offense, and therefore, the jury did not have to be unanimous. Held: The Court agreed, holding that the gravamen of the offense is the agreement, and the predicate offenses are a manner and means of committing the offense. As such, the jury did not have to be unanimous.


Rogers v. State, W.L. 3134509; LEXIS 582 (Tex. Crim. App. 2018)


Jury Instruction: The defendant was having an affair with the wife of the victim. According to the defendant, he went to her house at her request to feed her cats. The victim unexpectedly showed up, and a fight ensued, during which a gun the defendant picked up discharged. He was charged and convicted of aggravated assault and burglary of a habitation. The trial court refused to submit instructions on necessity and self-defense. The court of criminal appeals granted review to determine if the defendant was harmed by the failure to submit the requested instructions. Held: The court holds he was, because the jury was prevented from considering the defensive issues.


No significant decisions



Estes v. State, 546 S.W.3d 691 (Tex. Crim. App. 2018)


Enhancement of Sexual Assault: The defendant was charged with sexual assault of a 14 year old girl, with whom he had an ongoing relationship. The defendant was married at the time, and the state enhanced the offense because the victim was someone who the defendant was prohibited from marrying. The defendant filed a pre-trial motion to quash, alleging the enhancement was unconstitutional. Held: The court rejects that argument, finding the enhancement is designed to punish more than just bigamy. It has the purpose of protecting children. The Court also notes that the inquiry into whether the legislature intended the statute to be used in this way is not relevant.



Ramjattansingh v. State, 548 S.W.3d 540 (Tex. Crim. App. 2018)


Sufficiency Analysis: Information alleged the defendant was intoxicated, and that his BAC was over .15 “at or near the time of the commission of the offense.” That is not part of the statutory definition, but it was submitted to the jury since the charge tracked the information. Held: The court holds that the sufficiency of the evidence is measured against a hypothetically correct jury charge. As such, the State was not required to prove the additional allegation that was not required by the statute.




Boyett v. State, 545 S.W.3d 556 (Tex. Crim. App. 2018)


Sufficient Evidence of Incompetence to Stand Trial: On the third day of trial, counsel filed a motion raising the issue of the defendant’s competency to stand trial. He pointed out several instances of behavior, and also referred to several other individuals who shared the same concern. The trial court held an informal hearing, at which counsel called four witnesses to testify about the defendant’s recent behavior. The court found the evidence insufficient to establish incompetence and resumed the trial. The court of appeals affirmed that decision. Held: The Court erred in two respects. The first was weighing the evidence of competency against the evidence of incompetency. The second was using a standard that increased the burden. The only inquiry is whether there was some evidence that would support a finding of incompetence. The Court finds that standard was met, and the trial court should have held a formal competency trial.





In re Joseph Smith, W.L. 2042010; LEXIS 5312 (Tex. App.—Dallas 2018)


Mandamus - Copy of Record: Counsel filed an Anders brief, and the defendant was given the opportunity to file his own brief. He requested a copy of the record to prepare the brief. Two exhibits had been introduced at trial, which contained over 700 mp3 files. The court reporter burned the files to a disk and filed the disk. The defendant requested paper copies of the exhibit, because he did not have access to a computer to play the files. Held: The Court holds the defendant is only entitled to a duplicate copy of the record, which he received. Note: This is a problem and will be more of a problem in the future as more video and audio is used in court. Providing a copy of an exhibit which a defendant can’t access doesn’t appear to be a fair way to handle the problem.





Diamond v. State, W. L. 2050342; LEXIS 3105 (Tex. App.—Houston [14th Dist.] 2018)


Exculpatory Evidence: The defendant was convicted of a DWI. At trial, blood test results were introduced, which showed an alcohol concentration of .193. After trial, the analyst self-reported that quality control and documentation protocols had been violated, and she had been removed from the case work two weeks prior to trial. The defendant filed an application for habeas corpus, based on the failure to disclose that evidence prior to trial. Even though the State admitted problems with the investigation (they admitted at closing that arresting officer was not “a very good officer”), and they emphasized the importance of the blood test results, the Court holds the defendant could not establish harm. Held: Court finds that based on other evidence, the jury would have still found the defendant was intoxicated.


Ex Parte Garcia, 547 S.W.3d 228 (Tex. Crim. App. 2018)


Advice Regarding Immigration: The defendant pled guilty in 2002 to possession of cocaine. At the time, he was a lawful permanent resident. He alleged that he asked his attorney if the plea would impact his immigration status, and the lawyer told him he would “probably be okay.” The defendant filed an application for habeas corpus, which was granted. The State argued that the defendant could not rely on Padilla v. Kentucky, 559 U.S. 356 (2010) because it had not been decided at the time and has been held to not be retroactive. Held: The failure to advise him of the claim recognized by Padilla is distinct from the claim here, which was that the defendant was misadvised. As such, the claim is cognizable, and can be considered by the Court.




Parmer v. State, 545 S.W.3d 724 (Tex. App.—Texarkana 2018)


IAC - Extraneous Offenses: The defendant was charged with attempted capital murder, which was based on shooting an officer. The State admitted the defendant’s medical records without objection. Those records contained references to bad acts, admissions of drug use, and an admission that the defendant was a member of the KKK. The defendant’s defense was that he did not intend to cause the death of the officer. Held:  The extraneous incidents were not relevant to the case, and there could be no reasonable strategy for not objecting. The Court also holds it cannot conclude that there was no reasonable probability that the extraneous matters did not influence the jury, and that the counsel’s errors undermined confidence in the jury’s verdict. As a result, the Court granted relief based on the deficient performance of counsel.

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