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 the 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. Last updated 12/07/00.
 
 

Also, look at the DWLS decision that holds a conviction cannot be based on failing to pay a reinstatement fee.

Also: What might be the most significant search and seizure issue in a decade will soon be decided by the Supreme Court of the United States.

           Accomplice Witness Rule, Matter of Law *

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.

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.

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

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

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, State's Right

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.

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.

Attorney-Client Privilege, Waiver

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.

Bail Jumping, Factual Sufficiency of the Evidence

Burns v. State, 958 S.W.2d 483 (Tex.App.- Houston [14^th 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".

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.

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

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.

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).

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.

Charging Instrument, Amendment

Curry v. State (Tex.App.- El Paso 1998). It was error for state to amend indictment by deleting language which described how an essential element of the offense was committed (such action was simply not an abandoment).

Charging Instrument, Lost

Carrillo v. State, 962 S.W.2d 719 (Tex.App. - Houston [14^th Dist.] 1998). State failed to follow the requirements of art. 21.25 when the original indictment was lost.

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.

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.

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.

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.

Closing Argument, Commenting on 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]".

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, 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, 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.

Community Supervision, Conditions, Restitution, Special Prosecutor

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.

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, Motions to Revoke, Due Diligence

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 [1^st 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).

Bawcom v. State, 24 S.W.3d 613 (Tex.App. - Houston [1st Dist.] 2000). Two and one half year delay.

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, Revocation, Delay In Holding Hearinge

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, Due Diligence

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.

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).

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 disallowing 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).

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, "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.

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.

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, 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, 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.

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.

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.

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 indentity 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.

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.

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; Withdrawal of Waiver

Walker v. State, 962 S.W.2d 124 (Tex.App. - Houston [1^st 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.

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[14^th 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, Restriction, Bias

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.

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.

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 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 in the Failure to Stop and Render Aid case when the defendant left the scene of the accident on foot.

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, 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 [1^st Dist.] 1997).

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.

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).

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

Delivery of Controlled Substance, 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.

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".

Double Jeopardy, Acquittal of Higher Offense

Windom v. State, 961 S.W.2d 267 (Tex.App. - Houston [1^st. 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, 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.

Double Jeopardy, Prosecutor's Reckless Cause of a Mistrial

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.

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).

DWI, Charge, Combination of Drugs

Rodriguez v. State, 18 S.W.3d 228 (Tex.Crim.App. 2000). 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".

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, 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.)

DWI, 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) but the State will not be allowed to offer any evidence of the prior convictions during its case in chief. Followed: Smith v. State, 12 S.W.3d 149 (Tex. App. – El Paso 2000); Robles v. State, 20 S.W.3d 162 (Tex.App. - Houston [14th Dist.] 2000).

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).

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 are worse in this case).

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).

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

Jiminez v. State, 981 S.W.2d 393 (Tex.App. - San Antonio). 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)

Renshaw v. State, 981 S.W.2d 464 (Tex.App. - Texarkana 1998). 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.

DWI, Felony, Insufficient Proof of Prior Convictions

Zimmer v. State, 989 S.W.2d 48 (Tex.App. - San Antonio 1999). State failed to prove that the individual named in the prior DWI judgment was the defendant at trial.

DWI, Videotape, Invoking Right to Counsel

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.

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, Videotape, Invoking Right to Terminate Interview

Cooper v. State, 961 S.W.2d 222 (Tex.App. - Houston [1^st. 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[14^th 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.

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).

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.

Evidence, Authenticating Audio Tapes

Angleton v. State, 955 S.W.2d 655 (Tex.App. – Houston [14^th 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. If Kephart v. State, 875 S.W.2d 319 (Tex.Crim.App. 1994) means what it says, such a tape can never be authenticated. (Question: how, for example, can a videotape of an unwitnessed murder of a convenience store clerk ever be proven up?"). Update: Case reversed at 971 S.W.2d 65 (Tex.Crim.App. 1998)

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, 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, 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, Hearsay, Co-Defendant's Statement

Zarychta v. State, 961 S.W.2d 455 (Tex.App. - Houston [1^st. 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.

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, 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, 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.].

Experts, Child Sexual Offense, Child's Credibility

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.

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 1986 (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, 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

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.

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 403, Past Drug Activity in Drug Case

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.

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.

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.

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, Sexual Offenses

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". [Careful: the Court made no reference to art. 38.37 of Code of Criminal Procedure].

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.

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.

Gang Membership, Evidence Of

Macias v. State, 959 S.W.2d 332 (Tex.App. - Houston [14^th 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.

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.

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.

Identity, Sufficiency of the Evidence

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)

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, Pending Deferred Adjudication, 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, 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, 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[14^th 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.

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.

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, 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).

Indictment, Delay Under art. 28.061

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.

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.

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.

Injury to a Child - Bodily Injury - Intentional - Factual Insufficiency

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.

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.

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".

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).

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 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 Notes, Trail 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, Verdict Less Than 12, "Disabled"

Valez v. State, 952 S.W.2d 622 (Tex.App. - Houston [14^th 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.

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.

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)

Lesser Included Offenses

Jones v. State, 962 S.W.2d 96 (Tex.App. - Houston [1^st 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.

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.

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).

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, 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".

Murder, Insufficient Evidence

Marvis v. State, 3 S.W.3d 68 (Tex. App. – Houston[14^th 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.

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).

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.

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.

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 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.

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).

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, Jury Charge

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)).

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.

Parties, Jury Charges, Application Paragraph, Language Error

Marvis v. State, 3 S.W.3d 68 (Tex. App. – Houston[14^th 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.

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 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.

Pleas, Range of Punishment Admonishment, Constitutional Error

High v. State, 991 S.W.2d 925 (Tex.App. - Houston [1^st 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.

Pleas, Opportunity to Withdraw

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.

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.

Pleas, Involuntary

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.

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 Controlled Substance

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).

Possession of a Controlled Substance, 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).

Punishment, Enhancement Allegations

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 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, 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.". See also Fields v. State, 966 S.W.2d 736 (Tex.App.- San Antonio 1998).

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, 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, Notice

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, 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.

Reasonable Doubt, Jury Charge, Failure to Give

Paulson v. State, 991 S.W.2d 907 (Tex.App. - Houston [14th Dist.] 1999). The trial court did not give the reasonable doubt instruction as required by Geesa so a reversal was mandatory. (The opinion is most noteworthy for reading like a thesis paper on the most obvious of issues).

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.

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.

Search and Seizure – "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

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.

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.

Search and Seizure - Consent to Search

$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).

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 volunatrily travels to police station and is then arrested, and the subsequent search occurs about one hour later.

Search and Seizure - DWI - Weaving Within Lane

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. 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.

Search and Seizure – DWI – Failing to Maintain Single Lane

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".

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.

Search and Seizure, Jurisdiction, Class B Municipality

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.

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 – Smell of Marijuana – Residence

State v. Steelman, 16 S.W.3d 483 (Tex. App. – Eastland 2000). 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

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 – 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 Motion - Uncontroverted State's Evidence

State v. Ross, 999 S.W.2d 468 (Tex.App. - Houston [14th Dist.] 1999). 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 denovo review.

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

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.

Guevara v. State, 6 S.W.3d 759 (Tex. App. – Houston[1^st 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.

Search and Seizure - Terry – Detention - Anonymous 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); Cf: State v. Stolte, 991 S.W.2d 336 (Tex.App. - Fort Worth, 1999).

Garcia v. State, 3 S.W.3d 227 (Tex. App. – Houston[14^th Dist.] 1999). Anonymous tip was not sufficiently corroborated in this marijuana in home case and subsequent consent was tainted by the illegal detention.

Search and Seizure – Terry – Duration

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.

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".

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.

Search and Seizure - Terry - Seizure of an Object

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).

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.

Search ad Seizure – Traffic Violations – Lack of Turn Signal 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 - 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.

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 and Seizure - Vehicles - Terry Search of Passenger Compartment

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.

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.

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.

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 - 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.

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[14^th Dist.] 1999). Trial court erred in denying Defendant’s request to represent himself on day of trial.

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.

Sentences, 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.

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).

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.

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.

Speedy Trial, Constitutional 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.

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.

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, 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.

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".

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.

Theft, Insufficient Evidence

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.

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 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.

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.

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.

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.

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.

S.W.2d

Voir Dire, DWI, Question Regarding Effect of BTR

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".

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.

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.

Voir Dire, Range of Punishment, Hypotheticals

Cena v. State, 960 S.W.2d 804 (Tex.App. - El Paso 1997). In an indecency with a child case, trial court erred in not allowing defense to voir dire on range of punishment by using a hypothetical wherein "the victim is an eight year old child".

Carson v. State, 986 S.W.2d 24 (Tex.App. - San Antonio 1998). In murder case, court erred in not allowing defense counsel to ask voir dire question of whether the only circumstance that probation was appropriate was euthanasia. However, remand was for punishment only. Update: Remand should have been for complete new trial and not solely for punishment. 6 S.W.3d 53 (Tex.Crim.App. 1999).

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.
 
 

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.

Voluntariness, Jury Instruction

Payne v. State, 985 S.W.2d 682 (Tex.App. - Houston [1st Dist.] 1999). Defendant was entitled in murder prosecution for instruction on voluntariness when there was some evidence that gun accidentally fired.

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.